CUSTODY AGREEMENT
AGREEMENT dated as of April 3, 1992, between XXXXXXX & XXXXXX FUND, INC.,
a Maryland corporation (the "Fund"), having its principal office and place of
business at One Lincoln Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000 and
BOSTON SAFE DEPOSIT AND TRUST COMPANY (the " Custodian"), a Massachusetts
trust company with its principal place of business at Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
That for and in consideration of the mutual promises hereinafter set forth,
the Fund and the Custodian agree as follows:
1. Definitions
Whenever used in this Agreement or in any Schedules to this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Authorized Person" shall be deemed to include the persons duly
authorized by the Board of Directors of the Fund to give Oral
Instructions and Written Instructions on behalf of the Fund and
listed in the certification annexed hereto as Appendix A or such
other certification as may be received by the Custodian from time
to time.
(b) "Book-Entry System" shall mean the Federal Reserve/ Treasury
book-entry system for United States and federal agency Securities,
its successor or successors and its nominee or nominees.
(c) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement to
be given to the Custodian, which is actually received by the
Custodian and signed on behalf of the Fund by any two Authorized
Persons or any two officers thereof.
(d)"Depository" shall mean The Depository Fund Company ("DTC"), a
clearing agency registered with the Securities and Exchange
Commission under Sections 17(a) of the Securities Exchange Act of
1934 as amended, its successor or successors and its nominee or
nominees, in which the Custodian is hereby specifically authorized
to make deposits. The term "Depository" shall further mean and
include any other person to be named in a Certificate authorized
to act as a depository under the 1940 Act, its successor or
successors and its nominee or nominees.
(e) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principle by the Government of the United States or agencies
or instrumentalities thereof, commercial paper bank certificates
of deposit, bankers' acceptances and short term corporate
obligations, where the purchase or sale of such securities
normally requires settlement in federal Funds on the same day as
such purchase or sale, and repurchase and reverse repurchase
agreements with respect to any of the foregoing types of
securities.
(f) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by
the Custodian to be an Authorized Person.
(g) "Prospectus" shall mean the Fund's current prospectus and
statement of additional information relating to the registration
of the Fund's Shares under the Securities Act of 1933, as amended.
(h) "Shares" refers to shares of Common Stock, par value $0.01 per
share of the Fund.
(i) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness,
and other securities, commodities interest and investments from
time to time owned by the Fund.
(j) "Transfer Agent" shall mean the person which performs as the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Fund,
(k) "Written Instructions" shall mean a written communication actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person by any system whereby the
receiver of such communication is able to verify through codes or
otherwise with a reasonable degree of certainty the authenticity
of the sender of such communication.
(l) The "1940 Act" refers to the Investment Company Act of 1940, and
the Rules and Regulations thereunder, all as amended from time to
time.
2. Appointment of Custodian.
(a) The Fund hereby constitutes and appoints the Custodian as custodian
of all the Securities and monies at the time owned by or in the
possession of the Fund during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth.
3. Compensation.
(a) The Fund will compensate the Custodian for its services
rendered under this Agreement in accordance with the fees set
forth in the Fee Schedule annexed hereto as Schedule A and
incorporated herein. Such Fee Schedule does not include
out-of-pocket disbursements of the Custodian for which the
Custodian shall be entitled to xxxx separately. Out-of-Pocket
disbursements shall include, but shall not be limited to, the
items specified in the Schedule of Out-of-Pocket charges
annexed hereto as Schedule B and incorporated herein, which
schedule may be modified by the Custodian upon not less than
thirty days prior written notice to the Fund.
(b) Any compensation agreed to hereunder may be adjusted from time
to time by attaching to Schedule A of this Agreement a revised Fee
Schedule, dated and signed by an Authorized Person or authorized
representative of each party hereto.
(c) The Custodian will xxxx the Fund as soon a practicable after the
end of each calendar month, and said xxxxxxxx will be detailed in
accordance with the Fee Schedule for the Fund. The Fund will
promptly pay to the Custodian the amount of such billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Fund will deliver or cause to
be delivered to the Custodian all Securities and monies owned by
it at any time during the period of this Agreement. The Custodian
will not be responsible for such Securities and monies until
actually received by it. The Fund shall instruct the Custodian
from time to time in its sole discretion, by means of Written
Instructions, or, in connection with the purchase or sale of Money
Market Securities, by means of Oral Instructions or Written
Instructions, as to the manner in which and in what amounts
Securities and monies are to be deposited on behalf of the Fund in
the Book-Entry System or the Depository; provided, however, that
prior to the deposit of Securities of the Fund in the Book-entry
System or the Depository, including a deposit in connection
with the settlement of a purchase or sale, the Custodian shall
have received a Certificate specifically approving such deposits
by the Custodian in the Book-Entry System or the Depository.
Securities and monies of the Fund deposited in the Book-Entry
System or the Depository will be represented in accounts which
include only assets held by the Custodian for customers, including
but not limited to accounts which the Custodian acts in a fiduciary
or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish an
maintain a separate account for a the Fund and shall credit to the
separate account all monies received by it for the account of such
Fund and shall disburse the same only:
1. In payment for Securities purchased for the Fund, as
provided in Section 5 hereof;
2. In Payment of dividends or distributions with respect to
the Shares, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect
to the Shares, as provided in Section 8 hereof;
4. In payment for Shares which have been redeemed by the Fund,
as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect to Money
Market Securities, Oral Instructions or Written
Instructions, setting forth the name and address of the
person to whom the payment is to be made, the amount to be
paid and the purpose for which payment is to be made; or
6. In payment of fees and in reimbursement of the expenses
and liabilities of the Custodian attributable to the
Fund as provided in Section 11(h) hereof.
(c) Confirmation and Statements. Promptly after the close of business
on each day, the Custodian shall furnish the Fund with
confirmations and a summary of all transfers to or from the account
of the Fund during said day. Where securities purchased by the
Fund are in a Fundable bulk of securities registered in the name
of the Custodian (or its nominee) or shown on the Custodian's
account on the books of the Depository or the Book-Entry System,
the Custodian shall by book entry or otherwise identify the
quantity of those securities belonging to the Fund. At least
daily, the Custodian shall furnish the Fund with a detailed
statement of the Securities and monies held for the Fund under
this Agreement as may be agreed to by the parties from time to
time.
(d) Registration of Securities and Physical Separation. All
Securities held for the Fund which are issued or issuable only in
bearer form, except such Securities as are held in the Book-Entry
System, shall be held by the Custodian in that form; all other
Securities held for the Fund may be registered in the name of the
Fund, in the name of any duly appointed registered nominee of the
Custodian as the Custodian may from time to time determine, or in
the name of the Book-Entry system or the Depository or their
successor or successors, or their nominee or nominees. The Fund
reserves the right to instruct the Custodian as to the method of
registration and safekeeping of the Securities. The Fund agrees
to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to
register in the name of its registered nominee or in the name of
the Book-Entry system of the Depository, any Securities which it
may hold for the account of the Fund and which may from time to
time be registered in the name of the Fund. The Custodian shall
hold all such Securities specifically allocated to the Fund which
are not held in the Book-Entry System or the Depository in a
separate account for the Fund in the name of the Fund physically
segregated at all times from those of any other person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction the
Custodian will establish segregated accounts on behalf of the Fund
to hold liquid or other assets as it shall be directed by a Written
Instruction and shall increase or decrease the assets in such
Segregated Accounts only as it shall be directed by subsequent
Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities. Unless
otherwise instructed to the contrary by a Written Instruction, the
Custodian by itself, or through the use of the Book-Entry System or
the Depository with respect to Securities therein deposited, shall
with respect to all Securities held for the Fund in accordance with
this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired,
or otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Fund for
monitoring or ascertaining any call, redemption or retirement
dates with respect to put bonds which are owned by the Fund and
held by the Custodian or its nominees. Nor shall the Custodian
have any responsibility or liability to the Fund for any loss
by the Fund for any missed payments or other defaults resulting
therefrom; unless the Custodian received timely notification
from the Fund specifying the time, place an manner for the
presentment of any such put bond owned by the Fund and held by
the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Fund for the
accuracy or completeness of any notification the Custodian my
furnish to the Fund with respect to put bonds;
3. Surrender Securities in temporary form for definitive Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter in
effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for
the account of the Fund all rights and similar Securities issued
with respect to any Securities held by the Custodian hereunder
for the Fund.
(g) Delivery of Securities and Evidence of Authority. Upon receipt of
a Written Instruction and not otherwise, except for subparagraphs
5, 6, 7, and 8 which may be effected by Oral or Written
Instructions, the Custodian, directly or through the use of the
Book-Entry System or the Depository shall;
1. Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorizations and any other instruments
whereby the authority of the Fund as owner of any Securities
may be exercised;
2. Deliver or cause to be delivered any Securities held for the
Fund in exchange for other Securities or cash issued or paid
in connection with the liquidation, reorganization, refinancing,
merger, consolidation or recapitalization of any corporation,
or the exercise of any conversion privilege;
3. Deliver or cause to be delivered any Securities held for
the Fund to any protective committee, reorganization committee
or other person in connection with the reorganization,
refinancing, merger, consolidation or recapitalization or sale
of assets of any corporation, and receive and hold under the
terms of this Agreement in the separate account or other
instruments or documents as my be issued to it to evidence such
delivery;
4. Make or cause to be made such transfers or exchanges
of the assets specifically allocated to the separate account of
the Fund and take such other steps as shall be stated in
Written Instructions to be for the purpose of effectuating
any duly authorized plan of liquidation, reorganization,
merger consolidation or recapitalization of the Fund;
5. Deliver Securities upon the sale of such Securities for the
account of the Fund pursuant to Section 5;
6. Deliver Securities upon the receipt of payment in
connection with any repurchase agreement related to such
Securities entered into by the Fund;
7. Deliver Securities owned by the Fund to the issuer thereof or
its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such
case the cash or other consideration is to be delivered to the
Custodian. Notwithstanding the foregoing, the Custodian shall
have no responsibility to the Fund for monitoring or
ascertaining any call, redemption or retirement dates with
respect to the put bonds which are owned by the Fund and held
by the Custodian or its nominee. Nor shall the Custodian have
any responsibility or liability to the Fund for any loss by the
Fund for any missed payment of other default resulting
therefrom; unless the Custodian received timely notification
from the Fund specifying the time, place and manner for the
presentment of any such put bond owned by the Fund and held by
the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Fund for the
accuracy or completeness of any notification the Custodian may
furnish to the Fund with respect to put bonds;
8. Deliver Securities 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 Fund which may be in the form of cash or obligations issued
by the United States government, its agencies or
instrumentalities;
9. Deliver Securities for delivery as security in connection with
any borrowings by the Fund requiring a pledge of Fund assets,
but only against receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions
from the Fund 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 Prospectus,
in satisfaction of requests by holders of Shares for repurchase
or redemption;
11. Deliver Securities as collateral in connection with short sales
by the Fund of common stocks for which the Fund owns the stock
or owns preferred stocks or debt securities convertible or
exchangeable, without payment or further consideration, into
shares of the common stock sold short;
12. Deliver Securities for any purpose expressly permitted by and
in accordance with procedures described in the Fund's
Prospectus; and
13. Deliver Securities for any other proper business purpose,
but only upon receipt of, in addition to Written Instructions,
a certified copy of a resolution of the Board of Directors
signed by an Authorized Person and certified by the Secretary
of the Fund, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper business purpose, and
naming the person or persons to whom delivery of such Securities
shall be made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is hereby
authorized to endorse and collect all checks, drafts, or other
orders for the payment of money received by the Custodian for the
account of the Fund.
5. Purchase and Sale of Investments of the Fund.
(a) Promptly after each purchase of Securities for the Fund,
the Fund shall deliver to the Custodian (i) with respect to each
purchase of Securities which are not Money Market Securities,
a Written Instruction, and (ii) with respect to each purchase
of Money Market Securities, either a Written Instruction or an
Oral Instruction, in either case specifying with respect to each
purchase: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or the principle amount
purchased and accrued interest, if any; (3) the date of purchase
and settlement; (4) the purchase price per unit; (5) the total
amount payable upon such purchase; (6) the name of the person from
whom or the broker through whom the purchase was made, if
any; (7) whether or not such purchase is to be settled through the
Book-Entry System or the Depository; and (8) whether the
Securities purchased are to be deposited in the Book-Entry System
or the Depository. The Custodian shall receive the Securities
purchased by or for the Fund and upon receipt of Securities
shall pay out of the monies held for the account of the Fund the
total amount payable upon such purchase, provided that the same
conforms to the total amount payable as set forth in such
Written or Oral Instructions.
(b) Promptly after each sale of Securities of the Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities which are
not Money Market Securities, a Written Instruction, and (ii) with
respect to each sale of Money Market Securities, either a Written
Instruction or an Oral Instruction, in either case specifying with
respect to each purchase: (1) the name of the issuer and the title of
the Securities; (2) the number of shares or the principle amount sold
and accrued interest, if any; (3) the date of sale; (4) the sale
price per unit; (5) the total amount payable to the Fund upon such
sale; (6) the name of the broker through whom or the person to whom
the sale was made; and (7) whether or not such sale is to be settled
through the Book-Entry System or the Depository. The Custodian shall
deliver or cause to be delivered the Securities to the broker of
other person designated by the Fund upon receipt of the total amount
payable to the Fund upon such sale, provided that the same conforms
to the total amount payable to the Fund as set forth in such Written
or Oral Instruction. Subject to the foregoing, the Custodian may
accept payment in such form as shall be satisfactory to it, and may
deliver Securities and arrange for payment in accordance with the
customs prevailing among dealers in Securities.
6. Lending of Securities.
If the Fund is permitted, and as disclosed in its Prospectus, to lend
Securities, within 24 hours after each loan of Securities, the Fund shall
deliver to the Custodian a Written Instruction specifying with respect to such
loan: (a) the names of the issuer and the title of the Securities; (b) the
number of shares or the principle amount loaned; (c) the date of loan and
delivery; (d) the total amount to be delivered to the Custodian, and
specifically allocated against the loan of the Securities, including the
amount of cash collateral and the premium, if any, separately identified; (e)
the name of the broker, dealer or financial institution to which the loan was
made; and (f) whether the Securities loaned are to be delivered through the
Book-Entry System or the Depository.
Promptly after each termination of a loan of Securities, the Fund shall
deliver to the Custodian a Written Instruction specifying with respect to each
loan termination and return of Securities; (a) the name of the issuer and the
title of the Securities to be returned; (b) the number of shares or the
principle amount to be returned; (c) the date of termination; (d) the total
amount to be delivered by the Custodian (including the cash collateral for
such Securities minus any offsetting credits as described in said Written
Instructions); (e) the name of the broker, dealer, or financial institution
from which such Securities will be returned; and (f) whether such return is to
be effected through the Book-Entry System or the Depository. The Custodian
shall receive all Securities returned from the broker, dealer or financial
institution to which such Securities were loaned and upon receipt thereof
shall pay the total amount payable upon such return of Securities as set forth
in the Written Instructions. Securities returned to the Custodian shall be
held as they were prior to such loan.
7. Payment of Dividends and Distributions.
(a) The Fund shall furnish to the Custodian the vote of the Board of
Directors of the Fund certified by the Secretary (i) authorizing the
declaration of distributions on a specified periodic basis and authorizing the
Custodian to rely on Oral or Written Instructions specifying the date of
the declaration of such distribution, the date of payment thereof, the record
date as of which shareholders entitled to payment shall be determined, the
amount payable per share to the shareholders of record as of the record
date and the total amount payable to the Transfer Agent on the payment
date, or (ii) setting forth the date of declaration of any distribution by
the Fund, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date and the
total amount payable to the Transfer Agent on the payment date.
(b) Upon the payment date specified in such vote, Oral Instructions,
or Written Instructions, as the case may be, the Custodian shall pay out the
total amount payable to the Transfer Agent of the Fund.
8. Sale and Redemption of Shares of the Fund.
(a) Whenever the Fund shall sell any Shares, the Fund shall deliver
or cause to be delivered to the Custodian a Written Instruction duly
specifying:
1. The name of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the sale of
such Shares.
The Custodian understand and agrees that Written Instructions may be furnished
subsequent to the purchase of Shares and that the information contained
therein will be derived from the sales of Shares as reported to the Fund by
the Transfer Agent.
(b) Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of the Sections 8, the Custodian shall pay all original issue or
other taxes required to be paid in connection with such issuance upon receipt
of a Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed,
the Fund shall cause the Transfer Agent to promptly furnish to the Custodian
Written Instructions, specifying:
1. The number of Shares Redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information contained in such
Written Instructions will be derived from the redemption of Shares as reported
to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth
the number of Shares received by the Transfer Agent for redemption, and that
such Shares are valid and in good form for redemption, the Custodian shall
make payment to the Transfer Agent of the total amount specified in a
Written Instruction issued pursuant to paragraph (d) of this Section 8.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by
the Fund, the Custodian, unless otherwise instructed by a
Written Instruction shall, upon receipt of advice from the
Fund or its agent stating that the redemption is in good form
for redemption in accordance with the check redemption
procedure, honor the check presented as part of such check
redemption privilege out of the monies specifically allocated
to the Fund in such advice for such purpose.
9. Indebtedness.
(a) The Fund will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Fund borrows money for temporary
administrative or emergency purposes using Securities as collateral for
such borrowings, a notice or undertaking in the form currently employed by
any such bank setting forth the amount which such bank will loan to the
Fund against delivery of a stated amount of collateral. The Fund shall
promptly deliver to the Custodian Written Instructions stating with
respect to each such borrowing: (1) the name of the bank; (2) the amount
and terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Fund, or other
loan agreement; (3) the time and date, if known, on which the loan is to
be entered into (the "borrowing date"); (4) the date on which the loan
becomes due and payable; (5) the total amount payable to the Fund on the
borrowing date; (6) the market value including the name of the issuer,
the title and the number of shares or the principal amount of any
particular Securities; (7) whether the Custodian is to deliver such
collateral through the Book-Entry System or the Depository; and (8) a
statement that such loan is in conformance with the 1940 Act and the
Fund's Prospectus.
(b) Upon receipt of the Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the borrowing date the
specified collateral and the executed promissory note, if any, against
delivery by the lending bank of the total amount of the loan payable, provided
that the same conforms to the total amount payable as set forth in the Written
Instruction. The Custodian may, at the option of the lending bank, keep
such collateral, in its possession, but such collateral shall be subject
to all rights therein given the lending bank by virtue of any promissory
note or loan agreement. The Custodian shall deliver as additional
collateral in the manner directed by the Fund from time to time such
Securities as may be specified in Written Instruction to collateralize
further any transaction described in this Section 9. The Fund shall
cause all Securities released from collateral status to be returned
directly to the Custodian, and the Custodian shall receive from time to
time such return of collateral as may be tendered to it. In the event
that the Fund fails to specify in Written Instruction all of the
information required by this Section 9, the Custodian shall not be under
any obligation to deliver any Securities. Collateral returned to the
Custodian shall be held under hereunder as it was prior to being used as
collateral.
10. Persons Having Access to Assets of the Fund
(a) No Director or agent of the Fund, and no officer, director,
employee or agent of the Fund's investment adviser, of any sub-investment
adviser of the Fund, or of the Fund's administrator, shall have physical
access to the assets of the Fund held by the Custodian or be authorized or
permitted to withdraw any investments of the Fund, nor shall the Custodian
deliver any assets of the Fund to any such person. No officer, director,
employee or agent of the Custodian who holds any similar position with the
Fund's investment advisor with any sub-investment advisor of the Fund or
with the Fund's administrator shall have access to the assets of the Fund.
(b) The individual employees of the Custodian duly authorized by the
Board of Directors of the Custodian to have access to the assets of the Fund
are listed in certification annexed hereto as Appendix B. The Custodian shall
advise the Fund of any change in the individuals authorized to have access
to the assets of the Fund by written notice to the Fund accompanied by a
certified copy of the authorizing resolution of the Custodians Board of
Directors approving such change.
(c) Nothing in this Section 10 shall prohibit any officer, employee
or agent of the Fund, or any officer director, employee or agent of the
investment adviser, of any sub-investment adviser of the Fund or of the Fund's
administrator, from giving Oral Instructions or Written Instructions
to the Custodian or executing a Certificate so long as it does not
result in delivery of or access to assets of the Fund prohibited by
paragraph (a) of this Section 10.
11. Concerning the Custodian.
(a) Standard of Conduct. Except as otherwise provided herein, neither
the Custodian nor its nominee shall be liable for any loss or damage,
including counsel fees, resulting from its action or omission to act
otherwise, except for any such loss or damage arising out of its own
negligence or willful misconduct. The Custodian may, with respect to
questions of law, apply for and obtain the advice and opinion of
counsel to the Fund or of its own counsel, at the expense of the
Fund, and shall be fully protected with respect to anything done or
omitted by it in good faith in conformity with such advice or
opinion, the Custodian shall be liable to the Fund for any loss or
damage resulting from the use of the Book-Entry System or the
Depository arising by reason of any negligence, misfeasance or
misconduct on the part of the Custodian or any of its employees or
agents.
(b) Limit of Duties. Without limiting the generality of the foregoing,
the Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any Securities purchased by the Fund,
the legality of the purchase thereof, or the propriety of the amount paid
therefore;
2. The legality of the sale of any Securities by the Fund or the propriety of
the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the sufficiency of the
amount to be received therefor;
4. The legality of the redemption of any Shares, or the propriety of the
amount to be paid therefor;
5. The legality of the declaration or payment of any distribution of the Fund;
6. The legality of any borrowing for temporary or emergency administrative
purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable
for, or considered to be the Custodian of, any money, whether to not
represented by any check, draft, or other instrument for the payment of money,
received by it on behalf of the Fund until the Custodian actually receives and
collects such money directly or by the final crediting of the account
representing the Fund's interest in the Book-Entry System or the Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be under
any duty or obligation to take action to effect collection of any amount due
to the Fund from the Transfer Agent nor to take any action to effect the
payment or distribution by the Transfer Agent of any amount paid by
the Custodian to the Transfer Agent in accordance with this Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be
under any duty or obligations to take action to effect collection of any
amount, if the Securities upon which such amount is payable are in default,
or if payment is refused after due demand or presentation, unless
and until (a) it shall be directed to take such action by a
Certificate and (b) it shall be assured to its satisfaction of
reimbursement of its costs and expenses in connection with such action.
(f) Appointment of Agents and Sub-Custodians. The Custodian may
appoint one or more banking institutions, including but not limited to banking
institutions located in foreign countries, to act as Depository or
Depositories or as Sub-Custodian or as Sub-Custodians of
Securities and monies at any specified time owned by the Fund,
upon terms and conditions specified in a Certificate. The
Custodian shall use reasonable care in selecting a Depository
and/or Sub-Custodian located in a country other than the United
States ("Foreign Sub-Custodian"), and shall oversee the
maintenance of any Securities or moneys of the Fund by any Foreign
Sub-Custodian. In addition, the Custodian shall hold the Fund
harmless from and indemnify the Fund against, any loss that occurs
as a result of the failure of any foreign Sub-Custodian to
exercise reasonable care with respect to the safekeeping of
Securities and monies of the Fund.
(g) No Duty to Ascertain Authority. The Custodian shall not be under
any duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for the Fund are such as may properly be held by
the Fund under the provisions of the Prospectus.
(h) Compensation of the Custodian. The Custodian shall be entitled to
receive, and the Fund agrees to pay to the Custodian, such compensation as
may be agreed upon from time to time between the Custodian and
the Fund. The Custodian may charge against any monies held on
behalf of the Fund pursuant to this Agreement such compensation
and any expenses incurred by the Custodian in the performance of
its duties pursuant to the Agreement. The Custodian shall also
be entitled to charge against any money held on behalf of the
Fund pursuant to this Agreement the amount of any loss, damage,
liability or expense incurred with respect to the Fund, including
counsel fees, for which it shall be entitled to reimbursement
under the provisions of this Agreements.
The expenses which the Custodian may charge against such account include, but
are not limited to, the expenses of Sub-Custodians and foreign branches of the
Custodian incurred in settling transactions outside of Boston, Massachusetts
or New York City, New York involving the purchase and sale of Securities.
(i) Reliance on Certificates and Instructions. The Custodian shall be
entitled to rely upon any Certificate, notice or other instrument in writing
received by the Custodian and reasonably believed by the Custodian to
be genuine and to be signed by two officers of the Fund. The
Custodian shall be entitled to rely upon any Written Instructions or
Oral Instructions actually received by the Custodian pursuant tot he
applicable Sections of the Agreement and reasonably believed by the
Custodian to be genuine and to given by an Authorized Person. The
Fund agrees to forward to the Custodian Written Instructions from an
Authorized Person confirming such Oral Instructions in such manner so
that such Written Instructions are received by the Custodian, whether
by hand delivery, telex or otherwise, by the close of business in the
same day that such Oral Instructions are given to the Custodian. The
Fund agrees that the fact that such confirming instructions are not
received by the Custodian shall in no way affect the validity of the
transactions or enforceability of the transactions hereby authorized
by the Fund. The Fund agrees that the Custodian shall incur no
liability to the Fund in acting upon Oral Instructions given to the
Custodian hereunder concerning such transactions provided such
instructions reasonably appear to have been received from a duly
Authorized Person.
(j) Inspection of Books and Records. The books and records of the
Custodian shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Fund and by appropriate
employees of the Securities and Exchange Commission.
The Custodian shall provide the Fund with any report obtained by the Custodian
on the system of internal accounting control of the Book-Entry System or the
Depository and with such reports on its own systems of internal accounting
control as the Fund may reasonably request from time to time.
12. Term and Termination.
(a) This agreement shall become effective in the date first set
forth above (the "Effective Date") and shall continue in effect thereafter
as the parties may mutually agree.
(b) Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than 60 days after the date of the
receipt of such notice. In the event such notice is given by the Fund,
it shall be accompanied by a certificate vote of the Board of Directors
of the Fund, electing to terminate this Agreement and designating a
successor custodian or custodians, which shall be a person qualified to
so act under the 1940 Act.
In the event that such notice is given by the Custodian, the Fund shall, on or
before the termination date, deliver to the Custodian a certified vote of the
Board of Directors of the Fund, designating a successor custodian or
custodians. In the absence of such designation by the Fund, the Custodian may
designate a successor custodian, which shall be a person qualified to so act
under the 0000 Xxx. If the Fund fails to designate a successor custodian, the
Fund shall upon the date specified in the notice of termination of the
Agreement and upon the delivery by the Custodian of all Securities (other
than Securities held in the Book-Entry System which cannot be delivered to the
Fund) and monies then owned by the Fund, be deemed to be its own custodian and
the Custodian shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement, other than the duty with respect to Securities
held in the Book-Entry System which cannot be delivered to the Fund.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in such
notice, and the Custodian shall upon receipt of a notice of acceptance by the
successor custodian on that date deliver directly to the successor
custodian all Securities and monies then held by the Custodian on behalf
of the Fund, after deducting all fees, expenses and other amounts for the
payment or reimbursement of which it shall them be entitled.
13. Limitation of Liability
The Fund and the Custodian agree that the obligations of the Fund under this
Agreement shall not be binding upon any of the Directors, shareholders,
nominees, officers, employees or agents, whether past, present or future, of
the Fund, individually, but are binding only upon the assets and property of
the Fund. The execution and delivery of the Agreement have been authorized by
the Directors of the Fund, and signed by an authorized officer of the Fund,
acting as such, and neither such authorizations by such Directors of the Fund,
nor such execution and delivery by such officer shall be deemed to have been
made by any of them or any shareholder of the Fund individually or to impose
any liability on any of the or any shareholder of the Fund personally, but
shall bind only the assets and property of the Fund.
14. Miscellaneous
(a) Annexed hereto as Appendix A is a certification setting forth
the names and the signatures of the present Authorized Persons. The Fund
agrees to furnish to the Custodian a new certification in similar form in the
event that any such present Authorized Person ceases to be such an
Authorized Person or in the event that other or additional Authorized
Person are elected or appointed. Until such new certification shall
be received, the Custodian shall be fully protected in acting under
the provisions of this Agreement upon Oral Instructions or signatures
of the present Authorized Persons as set forth in the last delivered
certification
(b) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be
sufficiently given if addressed to the Custodian and mailed or delivered to it
at its offices as Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or at such
other place as the Custodian may use from time to time designate in writing.
(c) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund, shall be sufficiently
given if addressed to the Fund and mailed or delivered to it at its offices at
One Lincoln Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000 or at such other
place as the Fund may from time to time designate in writing.
(d) This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the same formality
as this Agreement (i) authorized and approved by a vote of the Board of
Directors of the Fund, including a majority of the members of the Board
of Directors of the Fund who are not "interested persons" of the Fund (as
defined in the 1940 Act), or (ii) authorized and approved by any such
other procedures as may be permitted or required by the 1940 Act.
(e) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without written
consent of the Custodian, or by the Custodian without the written consent
of the Fund authorized or approved by a vote of the Board of Directors of the
Fund, and any attempted assignment without such written consent shall be
null and void.
(f) This Agreement shall be construed in accordance with
the laws of the Commonwealth of Massachusetts.
(g) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
(h) 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day and
year first above written.
XXXXXXX & XXXXXX FUND, INC.
By: /s/ B. Xxxxxx Xxxxxxx
Name: B. Xxxxxx Xxxxxxx
Title: Vice President
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Xxxxxxxxx X. Xxxx
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
THE BOSTON COMPANY
FEE SCHEDULE FOR
XXXXXXX & XXXXXX ADVISORS, INC.
Custody Charges
Basis Points
Country Per Annum Transaction Charge
Argentina 24 basis points $50.00
Australia 5 basis points $60.00
Austria 10 basis points $60.00
Belgium 5 basis points $90.00
Brazil* 30 basis points $80.00
Canada 5 basis points $30.00
Chili* 16 basis points $60.00
Cyprus* 60 basis points $175.00
Denmark 18 basis points $60.00
Euroclear/CEDEL 2.5 basis points $20.00
Finland 18 basis points $ 60.00
France 5 basis points $125.00
Germany 6 basis points $ 75.00
Greece 60 basis points $175.00
Hong Kong 20 basis points $125.00
Indonesia 10 basis points $ 60.00
Ireland 21 basis points $ 70.00
Israel 35 basis points $ 70.00
Italy 15 basis points $ 75.00
Japan 6 basis points $ 50.00
Jordan 35 basis points $ 75.00
Korea 20 basis points $ 90.00
Luxembourg 6 basis points $ 75.00
Malaysia 20 basis points $125.00
Mexico 15 basis points $ 50.00
Netherlands 5 basis points $ 50.00
New Zealand 5 basis points $ 60.00
Norway 20 basis points $ 70.00
Pakistan 60 basis points $250.00
Philippines 45 basis points $125.00
Portugal 24 basis points $ 60.00
Singapore 24 basis points $200.00
Spain 35 basis points $200.00
Sri Lanka* 60 basis points $175.00
Sweden 25 basis points $ 75.00
Switzerland 10 basis points $ 60.00
Thailand 28 basis points $ 90.00
Turkey 60 basis points $250.00
United Kingdom 5 basis points $ 60.00
United States 2 basis points $ 15.00
Uruguay 24 basis points $ 60.00
Venezuela 24 basis points $ 60.00
*Please contact your account representative prior to investing
in these markets. These markets may require special applications and
associated fees.
THE BOSTON COMPANY
FEE SCHEDULE FOR
XXXXXXX & XXXXXX ADVISORS, INC.
Our proposal includes:
- Safekeeping of Assets held by the Funds
- Settlement of Portfolio Transactions
- Corporate Action Processing
- Income Collection
- Tax Reclamation (global Funds)
- Daily, Weekly, and Monthly Reporting
I CUSTODY CHARGES
See attached chart for Custody Charges.
II MINIMUM FEES
A minimum fee of $30,000 per portfolio, per annum will apply.
III OUT-OF-POCKET CHARGES
Reimbursable out-of-pocket expenses will be added to each monthly
invoice and will include, but are not limited to, such customary items
as telephone,telex, wire charges ($3.50 per wire), stamp duties, securities
registration, postage and courier charges.
We reserve the right to renegotiate our fee proposal should the actual
services required vary materially from the assumptions provided.
This fee proposal will remain in effect for 90 days from April 1, 1992.
APPENDIX A-1
We, Xxxx X. Xxxxxxxxxx, Chief Financial Officer and Xxxxxxx Xxxxxx,
Secretary of the Xxxxxxx & Xxxxxx Fund, Inc. a Corporation organized under the
laws of Maryland (the "Fund"), do hereby certify that:
The list on the attached pages (A-2) contains those individuals that have
been duly authorized as Authorized Persons to give Oral Instructions and any
two of said individuals shall be authorized to give Written Instructions on
behalf of the Fund and the signatures set forth opposite their respective
names are their true and correct signatures.
Any Written Instruction given in connection with the issuance of checks
and other drafts in payment of the Fund's operating expenses and other
disbursements as provided therein must include the signatures of either Xxxx
X. Xxxxxxxxxx and Xxxxx Xxxxx or Xxxxx Xxxxxxx.
/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, Chief Financial Officer
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, Secretary
APPENDIX A-2
The Directors of the Xxxxxxx & Xxxxxx Fund, Inc have directed by
unanimous consent that:
RESOLVED, that the following people are authorized to deliver Written and
Oral Instructions to Norstar Bank, N.A. and Boston Safe Deposit and Trust
regarding the above-mentioned Fund.
Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
Xxx Xxxxxx /s/ Xxx Xxxxxx
Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxx /s/ Xxxxx X. Xxxx
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxxxxx
Xxxxxxxx Xxxx /s/ Xxxxxxxx Xxxx
Xxxxx Xxxx /s/ Xxxxx Xxxx
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx
Xxxx X. Xxxxxxx /s/ Xxxx x. Xxxxxxx
Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
Dated: April 3, 1992 /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, Secretary
APPENDIX B - INDIVIDUALS WITH ACCESS
I, Xxxxx X. Xxxxxx, Secretary of Boston Safe Deposit and Trust Company, a
Massachusetts corporations (the "Custodian"), do hereby certify that:
The following eleven named individuals have been duly authorized by the
Executive Committee of the Board of Directors of the Custodian to have access
to the assets of XXXXXXX & XXXXXX FUND, INC., a corporation organized under
the laws of Maryland, held by the Custodian in its capacity as such:
Xxxxx Xxxxxxxx
Xxxxx X. XxXxxxx
Xxxx X. Xxxxxxx
Xxxx Xxxxxx
Xxxxxxxx Xxxxx
Xxxxxxx X. XxXxxxx, XX
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx X. Xxxx
Xxxxxxxx Xxxx
Xxxxxx X. Xxxxxxxx, III
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Secretary
Boston Safe Deposit and Trust Company
SCHEDULE B
The Fund will pay to the Custodian as soon as possible after the end of
each month all out-of-pocket expenses reasonably incurred in connection with
the assets of the Fund.
THE BOSTON COMPANY The Boston Company
Advisors, Inc.
00 Xx. Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
October 12, 1994
Xx. Xxxxxxx Xxxxxxxx
Chief Financial Officer
Xxxxxxx & Xxxxxx Advisors, Inc.
One Lincoln Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxx Xxxx 00000
Dear Xxx,
As we discussed, enclosed is a proposed fee arrangement for the custodial
services the Boston Company currently provided to Xxxxxxx & Xxxxxx. The
minimum custody fee per portfolio has been decreased from $2,500 to $500 per
account, per month. If this proposal is acceptable to Xxxxxxx & Xxxxxx, it
will be retroactive to January 1994. Please review this arrangement and call
me at your convenience. I look forward to working with you in the future.
Sincerely
/s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Client Service Manager
A company of Mellon Bank Corporation
THE BOSTON COMPANY
FEE SCHEDULE FOR
XXXXXXX & XXXXXX ADVISORS, INC.
Our proposal includes:
- Safekeeping of Assets held by the Funds
- Settlement of Portfolio Transactions
- Corporate Action Processing
- Income Collection
- Tax Reclamation (global Funds)
- Daily, Weekly, and Monthly Reporting
I MINIMUM FEES
A minimum fee of $500.00 per account per month.
II CUSTODY CHARGES
See attached chart for Custody Charges.
III OUT-OF-POCKET CHARGES
Reimbursable out-of-pocket expenses will be added to each monthly
invoice and will include, but are not limited to, such customary items
as telephone, telex, wire charges ($3.50 per wire), stamp duties,
securities registration, postage and courier charges.
THE BOSTON COMPANY
FEE SCHEDULE FOR
XXXXXXX & XXXXXX ADVISORS, INC.
FEE ARRANGEMENT - FLEXIBLE YIELD SERIES (I, II, III),
DIVIDEND INTEREST PAYMENTS
Depository $5.00
Physical $30.00
Corporate Actions $60.00
Fees will be calculated based n actual activity, effective through
December 31, 1994. Minimum fees will be waived.
MELLON TRUST Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000
October 30, 1997
Xx. Xxxxxxxxx Xxxxxx
Fund Accounting Manager
Xxxxxxx & Xxxxxx Advisors, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Xxxxxxxxx:
Please find attached the custodian fee schedule currently in effect between
Xxxxxxx & Xxxxxx and Boston Safe Deposit & Trust. The attached fee schedule,
which may be included as an addendum to the Custody Agreement between Xxxxxxx
& Xxxxxx and Boston Safe, applies to the following series of Xxxxxxx & Xxxxxx
Fund, Inc.
Small Cap Series
Technology Series
International Series
Global Fixed Income Series
World Opportunities Series
Blended Asset Series I
Flexible Yield Series I
Flexible Yield Series III
New York Tax Exempt Series
Ohio Tax Exempt Series
Diversified Tax Exempt Series
Energy Series
Financial Services Series
Life Sciences Series
Blended Asset Series II
Maximum Horizon Series
Defensive Series
Flexible Yield Series II
Tax Managed Series
Please call if you have questions or need additional information.
Sincerely
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Vice President
BOSTON SAFE DEPOSIT & TRUST
MUTUAL FUND CUSTODY FEE SCHEDULE
XXXXXXX & XXXXXX FUND, INC.
I. ACCOUNT MAINTENANCE
To be charged per Account, per month only if the generated
Invoice does not meet the $250.00 minimum.
II. DOMESTIC ASSET CHARGES
First $50 million 2.0bp
Next $450 million 1.0bp
Next $500 million .75bp
Excess .50bp
III. TRANSACTION FEES
FBE Receipt or Delivery 10.00
PTC Receipt or Delivery 15.00
DTC Receipt or Delivery 10.00
Physical Receipt or Delivery 20.00
Options: Write, Close, Expire or Exercise 12.00
Third Party FX 20.00
Wires 3.50
III. OUT OF POCKET EXPENSES
Reimbursable out-of-pocket expenses will be added to each monthly invoice and
will include, but not be limited to, such customary items as telephone, wire
charges (3.50 per wire), postage and insurance, courier services and
duplication charges.
III. GLOBAL ASSET AND TRANSACTION CHARGES
See attached country by country schedule.
XXXXXXX & XXXXXX FUND, INC.
GLOBAL FEE SCHEDULE
Country Asset Charge Transaction Charge
United Kingdom 2.50 20
Germany 2.50 20
Canada 2.50 20
Euroclear 2.50 20
Cedel 2.50 20
Australia 2.50 20
Japan 2.50 20
New Zealand 5.00 30
Netherlands 5.00 00
Xxxxx Xxxxxx 5.00 30
Denmark 5.00 30
Italy 5.00 30
Switzerland 5.00 30
Ireland 5.00 30
Sweden 5.00 30
Spain 5.00 30
Belgium 5.00 30
France 5.00 30
Mexico 12.00 40
Austria 12.00 40
Norway 12.00 40
Singapore 12.00 40
S. Korea 12.00 40
Finland 12.00 40
Malaysia 12.00 40
Thailand 12.00 40
Israel 12.00 40
Hong Kong 12.00 40
Xxx Xxxxx 00.00 00
Xxxxx Xxxxxxxx 35.00 50
Philippines 35.00 50
Argentina 35.00 50
Taiwan 35.00 50
Turkey 35.00 50
Indonesia 45.00 60
Portugal 45.00 60
Peru 45.00 60
Luxembourg 45.00 60
Chile 60.00 85
Brazil 60.00 85
Greece 60.00 85
Jordan 60.00 85
Mauritius 60.00 85
Poland 60.00 85
Pakistan 60.00 85
Bangladesh 60.00 85
China - Shenzhen 60.00 85
India 60.00 85
Cyprus 60.00 85
Uruguay 60.00 85
Venezuela 60.00 85
Colombia 60.00 85
China - Shanghai 60.00 85
