Exhibit No. 99.8(a)
CUSTODIAN CONTRACT
BETWEEN
MFS WORLDWIDE TOTAL RETURN TRUST
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
PAGE
1. Employment of Custodian and Property to be Held By It.......... 1
2. Duties of the Custodian with Respect to Property of the
Trust Held by the Custodian in the United States............... 2
2.1. Holding Securities.................................... 2
2.2. Delivery of Securities................................ 2
2.3. Registration of Securities............................ 5
2.4. Bank Accounts......................................... 6
2.5. Payments for Shares................................... 6
2.6. Investment and Availability of Federal Funds.......... 6
2.7. Collection of Income.................................. 7
2.8. Payment of Trust Monies............................... 7
2.9. Liability for Payment in Advance of Receipt of
Securities Purchased.................................. 9
2.10. Appointment of Agents................................. 9
2.11. Deposit of Trust Assets in Securities System.......... 10
2.11A. Trust Assets Held in the Custodian's Direct Paper
System................................................ 12
2.12. Segregated Account.................................... 13
2.13. Ownership Certificates for Tax Purposes............... 13
2.14. Proxies............................................... 14
2.15. Communications Relating to Trust Portfolio Securities. 14
2.16. Reports to Trust by Independent Public Accountants.... 14
3. Duties of the Custodian with Respect to Property of the Trust
Held Outside of the United States.............................. 15
3.1 Appointment of Chase as Subcustodian.................. 15
3.2 Standard of Care; Liability........................... 15
3.3 Trust's Responsibility for Rules and Regulations...... 16
4. Payments for Repurchases or Redemptions of Shares of the Trust. 16
5. Proper Instructions............................................ 16
6. Actions Permitted Without Express Authority.................... 17
7. Evidence of Authority.......................................... 17
8. Duties of the Custodian with Respect to the Books of Account
and Calculation of Net Asset Value and Net Income.............. 18
9. Records ...................................................... 18
10. Opinion of Trust's Independent Accountants .................... 19
11. Compensation of Custodian...................................... 19
TABLE OF CONTENTS (CONTINUED)
PAGE
12. Responsibility of Custodian.................................... 19
13. Effective Period, Termination and Amendment.................... 20
14. Successor Custodian............................................ 21
15. Interpretive and Additional Provisions......................... 22
16. Massachusetts Law to Apply..................................... 22
17. Prior Contracts................................................ 22
18. Delegation of Certain Custodian Duties to MFS............. 23
CUSTODIAN CONTRACT
This Contract between MFS Worldwide Total Return Trust, a business
trust organized and existing under the laws of Massachusetts, having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
hereinafter called the "Trust", and State Street Bank and Trust Company, a
Massachusetts trust company, having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, hereinafter called the
"Custodian",
WITNESSETH: That in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It.
The Trust hereby employs the Custodian as the custodian of its assets
pursuant to the provisions of the Declaration of Trust including securities and
cash it desires to be held within the United States (collectively "domestic
securities") and securities and cash it desires to be held outside the United
States (collectively "foreign securities"), subject to the terms of Article 3
hereof. The Trust agrees to deliver to the Custodian all securities and cash
owned by it, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the Trust
from time to time, and the cash consideration received by it for such new or
treasury shares of beneficial interest ("Shares") of the Trust as may be issued
or sold from time to time. The Custodian shall not be responsible for any
property of the Trust held or received by the Trust and not delivered to the
Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Article
5), the Custodian shall from time to time employ one or more subcustodians, but
only in accordance with an applicable vote by the Board of Trustees of the
Trust, and provided that, except as expressly provided in Article 3 hereof, the
Custodian shall have no more or less responsibility or liability to the Trust on
account of any actions or omissions of any subcustodian so employed than any
such subcustodian has to the Custodian.
2. Duties of the Custodian with Respect to Property of the Trust Held By
the Custodian in the United States.
The provisions of this Article 2 shall apply to the duties of the
Custodian as they relate to domestic securities, held in the United States.
2.1. Holding Securities. The Custodian shall hold and physically
segregate for the account of the Trust all non-cash property, including all
domestic securities owned by the Trust to be held in the United States, other
than (a) securities which are maintained pursuant to Section 2.11 in a clearing
agency which acts as a securities depository or in a book-entry system
authorized by the U.S. Department of the Treasury, collectively referred to
herein as a "Securities System"; and (b) commercial paper of an issuer for which
State Street Bank and Trust Company acts as issuing and paying agent ("Direct
Paper") which is deposited and/or maintained in the Direct Paper Book-Entry
System ("Direct Paper System") pursuant to Section 2.11.A.
2.2. Delivery of Securities. The Custodian shall release and deliver
securities owned by the Trust held by the Custodian or in a Securities System
account of the Custodian or in the Direct Paper System only upon receipt of
Proper Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the Trust
and receipt of payment therefor;
2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by the Trust;
3) In the case of a sale effected through a Securities
System, in accordance with the provisions of Section 2.11 hereof;
4) To the depository agent in connection with tender or
other similar offers for portfolio securities of the Trust;
5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or otherwise become payable; provided
that, in any such case, the cash or other consideration is to be delivered to
the Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Trust or into the name of any nominee or nominees of the Custodian
or into the name or nominee name of any agent appointed pursuant to Section 2.10
or into the name or nominee name of any subcustodian appointed pursuant to
Article l; or for exchange for a different number of bonds, certificates or
other evidence representing the same aggregate face amount or number of units;
provided that, in any such case, the new securities are to be delivered to the
Custodian;
7) Upon the sale of such securities for the account of the
Trust, to the broker or its clearing agent, against a receipt, for
examination in accordance with "street delivery" custom; provided that in any
such case, the Custodian shall have no responsibility or liability for any loss
arising from the delivery of such securities prior to receiving payment for such
securities except as may arise from the Custodian's own negligence or willful
misconduct;
8) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions for
conversion contained in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for definitive
securities; provided
that, in any such case, the new securities and cash, if any, are to be delivered
to the Custodian;
10) For delivery in connection with any loans of
securities made by the Trust, but only against receipt of adequate collateral as
agreed upon from time to time by the Custodian and the Trust, which may be in
the form of cash or obligations issued by the United States government, its
agencies or instrumentalities, except that in connection with any loans for
which collateral is to be credited to the Custodian's account in the book-entry
system authorized by the U.S. Department of the Treasury, the Custodian will not
be held liable or responsible for the delivery of securities owned by the Trust
prior to the receipt of such collateral;
11) For delivery as security in connection with any
borrowings by the Trust requiring a pledge of assets by the Trust, but only
against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement among the Trust, the Custodian and a broker-dealer registered under
the Securities Exchange Act of 1934 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc. ("NASD"), relating to
compliance with the rules of The Options Clearing Corporation and of any
registered national securities exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by the Trust;
13) For delivery in accordance with the provisions of any
agreement among the Trust, the Custodian, 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 Trust;
14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for the Trust, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may be described
from time to time in the Trust's currently effective prospectus and statement of
additional information ("prospectus"), in satisfaction of requests by holders of
Shares for repurchase or redemption; and
15) For any other proper corporate purpose, but only upon
receipt of, in addition to Proper Instructions, a certified copy of a resolution
of the Board of Trustees or of the Executive Committee signed by an officer of
the Trust and certified by the Secretary or an Assistant Secretary, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper corporate purpose, and naming the person or persons to whom
delivery of such securities shall be made.
2.3. Registration of Securities. Domestic securities held by the
Custodian (other than bearer securities) in the United States shall be
registered in the name of the Trust or in the name of any nominee of the Trust
or of any nominee of the Custodian which nominee shall be assigned exclusively
to the Trust, unless the Trust has authorized in writing the appointment of a
nominee to be used in common with other registered investment companies having
the same investment adviser as the Trust, or in the name or nominee name of any
agent appointed pursuant to Section 2.10 or in the name or nominee name of any
subcustodian appointed pursuant to Article 1. All domestic securities accepted
by the Custodian on behalf of the Trust under the terms of this Contract shall
be in "street name" or other good delivery form.
2.4. Bank Accounts. The Custodian shall open and maintain a separate
bank account or accounts (the " Trust's Account or Accounts") in the name of the
Trust, subject only to draft or order by the Custodian acting pursuant to the
terms of this Contract, and shall hold in such Account or Accounts, subject to
the provisions hereof, all cash received by it from or for the Account of the
Trust, other than cash maintained by the Trust in a bank Account established and
used in accordance with Rule 17f-3 under the Investment Company Act of 1940.
Funds held by the Custodian for the Trust may be deposited by it to its credit
as Custodian in the Banking Department of the Custodian or in such other banks
or trust companies as it may in its discretion deem necessary or desirable;
provided, however, that every such bank or trust company shall be qualified to
act as a custodian under the Investment Company Act of 1940 and that each such
bank or trust company and the funds to be deposited with each such bank or trust
company shall be approved by vote of majority of the Board of Trustees of the
Trust. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
2.5. Payments for Shares. The Custodian shall receive from the
distributor for the Trust's Shares or from the Transfer Agent of the Trust and
deposit into the Trust's account such payments as are received for Shares of the
Trust issued or sold from time to time by the Trust. The Custodian will provide
timely notification to the Trust and the Transfer Agent of any receipt by it of
payments for Shares of the Trust.
2.6. Investment and Availability of Federal Funds. Upon mutual
agreement between the Trust and the Custodian, the Custodian shall, upon the
receipt of Proper Instructions,
1) invest in such instruments as may be set forth in such
instruments as may be set forth in such instructions on the same day as received
all federal funds received after a time agreed upon between the Custodian and
the Trust; and
2) make federal funds available to the Trust as of specified
times agreed upon from time to time by the Trust and the Custodian in the amount
of checks received in payment for Shares of the Trust which are deposited into
the Trust's account.
2.7. Collection of Income. The Custodian shall collect on a timely
basis all income and other payments with respect to registered domestic
securities held hereunder to which the Trust shall be entitled either by law or
pursuant to custom in the securities business, and shall collect on a timely
basis all income and other payments with respect to bearer domestic securities
if, on the date of payment by the issuer, such domestic securities are held by
the Custodian or agent thereof and shall credit such income, as collected, to
the Trust's custodian Account. Without limiting the generality of the foregoing,
the Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on domestic securities held hereunder. Income due the Trust on
domestic securities loaned pursuant to the provisions of Section 2.2 (10) shall
be the responsibility of the Trust. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Trust with
such information or data as may be necessary to assist the Trust in arranging
for the timely delivery to the Custodian of the income to which the Trust is
properly entitled.
2.8. Payment of Trust Monies. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out monies of the Trust in the following
cases only:
1) Upon the purchase of domestic securities for the account of
the Trust but only (a) against the delivery of such securities to the Custodian
(or any bank, banking firm or trust company doing business in the United States
or abroad which is qualified under the Investment Company Act of 1940, as
amended, to act as a custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of the Trust or in the name of a
nominee of the Custodian referred to in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected through a Securities System, in
accordance with the conditions set forth in Section 2.11 hereof; (c) in the case
of a purchase involving the Direct Paper System, in accordance with the
conditions set forth in Section 2.11A; or (d) in the case of repurchase
agreements entered into between the Trust and the Custodian, or another bank, or
a broker-dealer which is a member of NASD, (i) against delivery of the
securities either in certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank with such securities or (ii)
against delivery of the receipt evidencing purchase by the Trust of securities
owned by the Custodian along with written evidence of the agreement by the
Custodian to repurchase such securities from the Trust;
2) In connection with conversion, exchange or surrender of
domestic securities owned by the Trust as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the
Trust as set forth in Article 4 hereof;
4) For the payment of any expense or liability incurred by the
Trust, including but not limited to the following payments for the account of
the Trust: interest, taxes, management, accounting, transfer agent and legal
fees, and operating expenses of the Trust whether or not such expenses are to be
in whole or part capitalized or treated as deferred expenses;
5) For the payment of any dividends declared pursuant to the
governing documents of the Trust;
6) For payment of the amount of dividends received in respect
of domestic securities sold short;
7) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of the Board
of Trustees or of the Executive Committee of the Trust signed by an officer of
the Trust and certified by its Secretary or an Assistant Secretary, setting
forth the purpose for which such payment is to be made, declaring such purpose
to be a proper purpose, and naming the person or persons to whom such payment is
to be made.
2.9. Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for purchase of domestic
securities for the account of the Trust is made by the Custodian in advance of
receipt of the securities purchased in the absence of specific written
instructions from the Trust to so pay in advance, the Custodian shall be
absolutely liable to the Trust for such securities to the same extent as if the
securities had been received by the Custodian, except that in the case of
repurchase agreements entered into by the Trust with a bank which is a member of
the Federal Reserve System, the Custodian may transfer funds to the account of
such bank prior to the receipt of written evidence that the securities subject
to such repurchase agreement have been transferred by book-entry into a
segregated non-proprietary account of the Custodian maintained with the Federal
Reserve Bank of Boston or of the safekeeping receipt, provided that such
securities have in fact been so transferred by book-entry.
2.10. Appointment of Agents. The Custodian may at any time or times in
its discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of 1940, as
amended, to act as a
custodian, as its agent to carry out such of the provisions of this Article 2 as
the Custodian may from time to time direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its responsibilities
or liabilities hereunder.
2.11. Deposit of Trust Assets in Securities Systems. The Custodian may
deposit and/or maintain domestic securities owned by the Trust in a clearing
agency registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934, which acts as a securities depository,
or in the book-entry system authorized by the U.S. Department of the Treasury
and certain federal agencies, collectively referred to herein as "Securities
System" in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may keep domestic securities of the Trust in
a Securities System provided that such securities are represented in an account
("Custodian's Account") of the Custodian in the Securities System which shall
not include any assets of the Custodian other than assets held as a fiduciary,
custodian or otherwise for customers;
2) The records of the Custodian with respect to domestic
securities of the Trust which are maintained in a Securities System shall
identify by book-entry those securities belonging to the Trust;
3) The Custodian shall pay for domestic securities
purchased for the account of the Trust upon (i) receipt of advice from the
Securities System that such securities have been transferred to the Custodian's
Account, and (ii) the making of an entry on the records of the Custodian to
reflect such payment and transfer for the account of the Trust. The Custodian
shall transfer domestic securities sold for the account of the Trust upon (i)
receipt of advice from the Securities System that payment for such securities
has been
transferred to the Custodian's Account, and (ii) the making of an entry on the
records of the Custodian to reflect such transfer and payment for the account of
the Trust. Copies of all advices from the Securities System of transfers of
domestic securities for the account of the Trust shall identify the Trust, be
maintained for the Trust by the Custodian and be provided to the Trust at its
request. Upon request, the Custodian shall furnish the Trust confirmation of
each transfer to or from the account of the Trust in the form of a written
advice or notice and shall furnish to the Trust copies of daily transaction
sheets reflecting each day's transactions in the Securities System for the
account of the Trust.
4) The Custodian shall provide the Trust with any report
obtained by the Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities deposited in the
Securities System;
5) The Custodian shall have received the initial or
annual certificate, as the case may be, required by Article 10 hereof;
6) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable to the Trust for any loss or
damage to the Trust resulting from use of the Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of its agents or
of any of its or their employees or from failure of the Custodian or any such
agent to enforce effectively such rights as it may have against the Securities
System; at the election of the Trust, it shall be entitled to be subrogated to
the rights of the Custodian with respect to any claim against the Securities
System or any other person which the Custodian may have as a consequence of any
such loss or damage if and to the extent that the Trust has not been made whole
for any such loss or damage.
2.11A. Trust Assets Held in the Custodian's Direct Paper System.
The Custodian may deposit and/or maintain domestic securities owned by the
Trust in the Direct Paper System subject to the following provisions:
1) No transaction relating to domestic securities in the
Direct Paper System will be effected in the absence of Proper Instructions;
2) The Custodian may keep domestic securities of the
Trust in the Direct Paper System only if such securities are represented in an
account of the Custodian in the Direct Paper System which shall not include any
assets of the Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
3) The records of the Custodian with respect to domestic
securities of the Trust which are maintained in the Direct Paper System shall
identify by book-entry those securities belonging to the Trust;
4) The Custodian shall furnish the Trust confirmation of
each transfer of Direct Paper to or from the account of the Trust, in the form
of a written advice or notice on the next business day following such transfer
and shall furnish to the Trust copies of daily transaction sheets reflecting
each day's transaction in the Direct Paper System for the account of the Trust;
5) The Custodian shall pay for domestic securities
purchased for the account of the Trust upon the making of an entry on the
records of the Custodian to reflect such payment and transfer of securities to
the account of the Trust. The Custodian shall transfer securities sold for the
account of the Trust upon the making of an entry on the records of the Custodian
to reflect such transfer and receipt of payment for the account of the Trust;
6) The Custodian shall provide the Trust with any report
on its system of internal accounting control for the Direct Paper System that
the Custodian receives and as the Trust may reasonably request from time to
time;
2.12. Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for and on
behalf of the Trust, into which account or accounts may be transferred cash
and/or domestic securities, including securities maintained in an account by the
Custodian pursuant to Section 2.11 hereof, (i) in accordance with the provisions
of any agreement among the Trust, the Custodian 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 the
Trust, (ii) for purposes of segregating cash or government securities in
connection with options purchased, sold or written by the Trust or commodity
futures contracts or options thereon purchased or sold by the Trust, (iii) for
the purpose of compliance by the Trust with the procedures required by
Investment Company Act Release No. 10666, or any subsequent release or releases
of the Securities and Exchange Commission relating to the maintenance of
segregated accounts by registered investment companies and (iv) for other proper
corporate purposes, but only, in the case of clause (iv), upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of the Board
of Trustees or of the Executive Committee signed by an officer of the Trust and
certified by the Secretary or an Assistant Secretary, setting forth the purpose
or purposes of such segregated account and declaring such purposes to be proper
corporate purposes.
2.13. Ownership Certificates for Tax Purposes. The Custodian shall
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to domestic
securities of the Trust held by it and in connection with transfers of domestic
securities.
2.14. Proxies. The Custodian shall, with respect to the domestic
securities held hereunder, cause to be promptly executed by the registered
holder of such securities, if the domestic securities are registered otherwise
than in the name of the Trust or a nominee of the Trust, all proxies, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Trust such proxies, all proxy soliciting materials and
all notices relating to such securities.
2.15. Communications Relating to Trust Portfolio Securities. The
Custodian shall transmit promptly to the Trust all written information
(including, without limitation, pendency of calls and maturities of domestic
securities and expirations of rights in connection therewith and notices of
exercise of call and put options written by the Trust and the maturity of
futures contracts purchased or sold by the Trust) received by the Custodian from
issuers of the domestic securities being held for the Trust. With respect to
tender or exchange offers, the Custodian shall transmit promptly to the Trust
all written information received by the Custodian from issuers of the domestic
securities whose tender or exchange is sought and from the party (or his agents)
making the tender or exchange offer. If the Trust desires to take action with
respect to any tender offer, exchange offer or any other similar transaction,
the Trust shall notify the Custodian at least three business days prior to the
date on which the Custodian is to take such action.
2.16. Reports to Trust by Independent Public Accountants. The Custodian
shall provide the Trust, at such times as the Trust may reasonably require, with
reports by independent public accountants on the accounting system, internal
accounting control and procedures for safeguarding securities, futures contracts
and options on futures contracts, including securities deposited and/or
maintained in a Securities System, relating to the services provided by the
Custodian under this
Contract; such reports, which shall be of sufficient scope and in sufficient
detail, as may reasonably be required by the Trust to provide reasonable
assurance that any material inadequacies would be disclosed by such examination,
and, if there are no such inadequacies, shall so state.
3. Duties of the Custodian with Respect to Property of the Trust Held Outside
of the United States. The provisions of this Article 3 shall apply to the duties
of the Custodian as they relate to foreign securities held outside the United
States.
3.1 Appointment of Chase as Subcustodian. The Custodian is authorized
and instructed by the Trust to employ Chase Manhattan Bank N.A. ("Chase") as
subcustodian for the Trust's foreign securities (including cash incidental to
transactions in such securities) on the terms and conditions set forth in the
Subcustody Contract between the Custodian and Chase which is attached hereto as
Exhibit A (the "Subcustody Contract"). The Custodian acknowledges that it has
entered into the Subcustody Contract and hereby agrees to provide such services
to the Trust and in accordance with such Subcustody Contract as necessary for
foreign custody services to be provided pursuant thereto.
3.2 Standard of Care; Liability. Notwithstanding anything to the
contrary in this Contract, the Custodian shall not be liable to the Trust for
any loss, damage, cost, expense, liability or claim arising out of or in
connection with the maintenance of custody of the Trust's foreign securities by
Chase or by any other banking institution or securities depository employed
pursuant to the terms of the Subcustody Contract, except that the Custodian
shall be liable for any such loss, damage, cost, expense, liability or claim
directly resulting from the failure of the Custodian to exercise reasonable care
in the performance of its duties hereunder. At the election of the Trust, the
Trust shall be entitled to be subrogated to the rights of the Custodian under
the Subcustody Contract with respect to any claim arising hereunder against
Chase or any other banking institution or securities
depository employed by Chase if and to the extent that the Trust has not been
made whole therefor.
3.3 Trust's Responsibility for Rules and Regulations. As between the
Custodian and the Trust, the Trust shall be solely responsible to assure that
the maintenance of foreign securities and cash pursuant to the terms of the
Subcustody Contract comply with all applicable rules, regulations,
interpretations and orders of the Securities and Exchange Commission, and the
Custodian assumes no responsibility and makes no representations as to such
compliance.
4. Payments for Repurchases or Redemptions of Shares of the Trust. From such
funds as may be available for the purpose but subject to the limitations of the
Declaration of Trust and any applicable votes of the Board of Trustees of the
Trust pursuant thereto, the Custodian shall, upon receipt of instructions from
the Transfer Agent, make funds available for payment to holders of Shares who
have delivered to the Transfer Agent a request for redemption or repurchase of
their Shares. In connection with the redemption or repurchase of Shares of the
Trust, the Custodian is authorized upon receipt of instructions from the
Transfer Agent to wire funds to or through a commercial bank designated by the
redeeming shareholders. In connection with the redemption or repurchase of
Shares of the Trust, the Custodian shall honor checks drawn on the Custodian by
a holder of Shares, which checks have been furnished by the Trust to the holder
of Shares, when presented to the Custodian in accordance with such procedures
and controls as are mutually agreed upon from time to time between the Trust and
the Custodian.
5. Proper Instructions. Proper Instructions as used throughout this Contract
means a writing signed or initialed by one or more person or persons as the
Board of Trustees shall have from time to time authorized. Each such writing
shall set forth the specific transaction or type of transaction involved,
including a specific statement of the purpose for which such action is
requested. Oral instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. The Trust shall
cause all oral instructions to be confirmed in writing.
Upon receipt of a certificate of the Secretary or an Assistant Secretary as to
the authorization by the Board of Trustees of the Trust accompanied by a
detailed description of procedures approved by the Board of Trustees, Proper
Instructions may include communications effected directly between
electro-mechanical or electronic devices provided that the Board of Trustees and
the Custodian are satisfied that such procedures afford adequate safeguards for
the Trust's assets.
6. Actions Permitted without Express Authority. The Custodian may in its
discretion, without express authority from the Trust:
1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this Contract,
provided that all such payments shall be accounted for to the Trust;
2) surrender securities in temporary form for securities in definitive
form;
3) endorse for collection, in the name of the Trust, checks, drafts
and other negotiable instruments; and
4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with the securities and property of the Trust except as otherwise directed by
the Board of Trustees of the Trust.
7. Evidence of Authority. The Custodian shall be protected in acting upon any
instructions, notice, request, consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly executed by or on behalf
of the Trust. The Custodian may receive and accept a certified copy of a vote of
the Board of Trustees of the Trust as conclusive evidence (a) of the authority
of any person to act in accordance with such vote or (b) of any determination or
of any action by the Board of Trustees pursuant to the Declaration of Trust as
described in such vote, and such vote may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees of the Trust to keep
the books of account of the Trust and/or compute the net asset value per share
of the outstanding shares of the Trust or, if directed in writing to do so by
the Trust, shall itself keep such books of account and/or compute such net asset
value per share. If so directed, the Custodian shall also calculate daily the
net income of the Trust as described in the Trust's currently effective
prospectus and shall advise the Trust and the Transfer Agent daily of the total
amounts of such net income and, if instructed in writing by an officer of the
Trust to do so, shall advise the Transfer Agent periodically of the division of
such net income among its various components. The calculations of the net asset
value per share and the daily income of the Trust shall be made at the time or
times described from time to time in the Trust's currently effective prospectus.
9. Records.
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Trust. All such records shall be
the property of the Trust and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Trust and employees and agents of the Securities and
Exchange Commission. The Custodian shall, at the Trust's request, supply the
Trust with a tabulation of securities owned by the Trust and held by the
Custodian and shall, when requested to do so by the Trust and for such
compensation as shall be agreed upon between the Trust and the Custodian,
include certificate numbers in such tabulations.
10. Opinion of Trust's Independent Accountant.
The Custodian shall take all reasonable action, as the Trust may from
time to time request, to obtain from year to year favorable opinions from the
Trust's independent accountants with respect to its activities hereunder in
connection with the preparation of the Trust's Form N-lA, and Form N-SAR or
other annual reports to the Securities and Exchange Commission and with respect
to any other requirements of such Commission.
11. Compensation of Custodian.
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Trust and the Custodian.
12. Responsibility of Custodian.
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Contract, but shall be kept indemnified by the Trust for
any action taken or omitted by it in the proper execution of instructions from
the Trust. It shall be entitled to rely on and may act upon advice of counsel
for the Trust on all matters and shall be without liability for any action
reasonably taken or omitted pursuant to such advice. Notwithstanding the
foregoing, the responsibility of the Custodian with respect to redemptions
effected by check shall be in accordance with a separate agreement entered into
between the Custodian and the Trust.
The Custodian shall be liable for the acts and omissions of Chase
appointed as its subcustodian pursuant to the provision of Article 3 to the
extent set forth in Sections 3.2 and 3.3 hereof.
The Trust agrees to indemnify and hold harmless the Custodian and its
nominee from and against all taxes, charges, expenses, assessments, claims and
liabilities (including counsel fees)
incurred or assessed against it or its nominee in connection with the
performance of this Contract, except such as may arise from it or its nominee's
own negligent action, negligent failure to act or willful misconduct. The
Custodian is authorized to charge any account of the Trust for such items and
its fees. To secure any such authorized charges and any advances of cash or
securities made by the Custodian to or for the benefit of the Trust for any
purpose which results in the Trust incurring an overdraft at the end of any
business day or for extraordinary or emergency purposes during any business day,
the Trust hereby grants to the Custodian a security interest in and pledges to
the Custodian securities held for it by the Custodian, in an amount not to
exceed five percent of the applicable Trust's gross assets, the specific
securities to be designated in writing from time to time by the Trust or its
investment adviser (the "Pledged Securities"). Should the Fund fail to repay
promptly any advances of cash or securities, the Custodian shall be entitled to
use available cash and to dispose of the Pledged Securities as is necessary to
repay any such advances.
13. Effective Period, Termination and Amendment.
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not act under Section 2.11 hereof in the
absence of receipt of an initial certificate of the Secretary or an Assistant
Secretary that the Board of Trustees of the Trust has approved the initial use
of a particular Securities System and the receipt of an annual certificate of
the Secretary or an Assistant Secretary that the Board of Trustees has reviewed
the use the Trust of such Securities System, as required in each case by Rule
17f-4 under the Investment Company Act of 1940, as amended and that the
Custodian shall not act under Section 2.11.A hereof in the absence of receipt of
an initial certificate of the Secretary or an Assistant Secretary that the Board
of Trustees has approved the initial use of the Direct Paper System and the
receipt of an annual
certificate of the Secretary or an Assistant Secretary that the Board of
Trustees has reviewed the use by the Trust of the Direct Paper System; provided
further, however, that the Trust shall not amend or terminate this Contract in
contravention of any applicable federal or state regulations, or any provision
of the Declaration of Trust, and (b) that the Trust may at any time by action of
its Board of Trustees (i) substitute another bank or trust company for the
Custodian by giving notice as described above to the Custodian, or (ii)
immediately terminate this Contract in the event of the appointment of a
conservator or receiver for the Custodian or upon the happening of a like event
at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Contract, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements.
14. Successor Custodian.
If a successor custodian shall be appointed by the Board of Trustees of
the Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Trust's securities held in a
Securities System.
If no such successor custodian shall be appointed, the Custodian shall,
in like manner, upon receipt of a certified copy of a vote of the Board of
Trustees of the Trust, deliver at the office of the Custodian and transfer such
securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company Act of 1940, of
its own selection, having an aggregate capital, surplus, and undivided profits,
as shown
by its last published report, of not less than $25,000,000, all securities,
funds and other properties held by the Custodian and all instruments held by the
Custodian relative thereto and all other property held by it under this Contract
and to transfer to an account of such successor custodian all of the Trust's
securities held in any Securities System. Thereafter, such bank or trust company
shall be the successor of the Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of the vote referred to or of
the Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
15. Interpretive and Additional Provisions.
In connection with the operation of this Contract, the Custodian and
the Trust may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Declaration of Trust of the Trust. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment of
this Contract.
16. Massachusetts Law to Apply.
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
17. Prior Contracts.
This Contract supersedes and terminates, as of the date hereof, the
existing custodian contracts between
the Trust and the Custodian. Any reference to the custodian contract between the
Trust and the Custodian in documents executed prior to the date hereof shall be
deemed to refer to this Contract.
18. Delegation of Certain Custodian Duties to MFS.
The Custodian may delegate to MFS the performance of any or all of its
duties hereunder relating to (i) accounting for investments in currency and for
financial instruments (including, without limitation, options, contracts,
futures contracts, options on futures contracts, options on foreign currency and
forward foreign currency exchange contracts) and (ii) federal and state
regulatory compliance. The Custodian shall compensate MFS for the performance of
such duties at such fee or fees as MFS shall determine to be equal to MFS's cost
for performing such duties (the "MFS Fees"). Following its payment of the MFS
Fees to MFS, the Custodian shall recover the amount of the MFS Fees and from the
Trust on such terms as the Custodian and the Trust shall agree. MFS assumes
responsibility for all duties delegated to it by the Custodian pursuant to this
Section 18, and the Custodian may rely on MFS for the accuracy and correctness
of the accounting information provided by MFS to the Custodian pursuant to this
Section 18.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 10th day of August, 1990.
ATTEST MFS WORLDWIDE TOTAL RETURN TRUST
XXXXX X. XXXXX By: A. XXXXX XXXXXXX
Xxxxx X. Xxxxx A. Xxxxx Xxxxxxx
Assistant Secretary President
ATTEST STATE STREET BANK & TRUST COMPANY
XXXXXXXXX XXXXXX By: XXXXXXX X. XXXXXXXX
Xxxxxxxxx Xxxxxx Xxxxxxx X. Xxxxxxxx
Assistant Secretary Vice President
The officer of the Trust signing this Contract is executing this Contract not
individually but in his capacity as an officer of the Trust. The obligations of
the Trust under this Contract are not binding upon any of the trustees,
officers, employees, agents or shareholders of the Trust individually, but bind
only the trust estate of the Trust.
