FORM OF
CUSTODY AGREEMENT
AGREEMENT dated as of XXXXXXXXXXX, 199X, between
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, [a business trust/
corporation] organized under the laws of the [Commonwealth of
Massachusetts/State of Maryland] (the "Fund"), having its
principal office and place of business at
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, 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.
W I T N E S S E T H:
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) "Affiliated Person" shall have the meaning of the term
within Section 2(a)3 of the 1940 Act.
(b) "Authorized Person" shall be deemed to include the Chairman
of the Board of [Directors/Trustees], the President, and any Vice
President, the Secretary, the Treasurer or any other person,
whether or not any such person is an officer or employee of the
Fund, duly authorized by the Board of [Directors/Trustees] 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.
(c) "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.
(d) "Business Day" shall mean any day on which the Fund, the
Custodian, the Book-Entry System and appropriate clearing
corporation(s) are open for business.
(e) "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.
(f) ["Articles of Incorporation"/ "Master Trust Agreement"]
shall mean the [Articles of Incorporation Master Trust Agreement]
of the Fund dated XXXXXXXXXX, 199X as the same may be amended
from time to time.
(g) "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and
Exchange Commission under Section 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.
(h) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principal by the government of the United States or agencies
or instrumentalities thereof ("U.S. government securities"),
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.
(i) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by
the Custodian to be an Authorized Person.
(j) "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.
(k) "Shares" refers to shares of common stock, $ par value
per share, of the Fund.
(l) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities, commodities interests and investments from
time to time owned by the Fund.
(m) "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Fund.
(n) "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, including, without limitation, electronic transmissions,
facsimile and telex.
(o) 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 Officer
or authorized representative of each party hereto.
(c) The Custodian will xxxx the Fund as soon as practicable
after the end of each calendar month, and said xxxxxxxx will be
detailed in accordance with Schedule A, as amended from time to
time. 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 confirmed in writing in accordance
with Section 11(i) hereof 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 for which the Custodian acts in a fiduciary
or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish
and maintain a separate account for 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 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, provided that in the event of disbursements pursuant to
this Sub-section 4(b)(5), the Fund shall indemnify and hold the
Custodian harmless from any claims or losses arising out of such
disbursements in reliance on such Written Instructions which it,
in good faith, believes to be received from duly Authorized
Persons; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as
provided in Sections 11(h) and 11(j).
(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 fungible 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 monthly, the Custodian shall furnish the Fund with a
detailed statement of the Securities and monies held for the Fund
under this Agreement.
(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 the Custodian, 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 or 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, 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 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;
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 of this section 4(g) 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 for the Fund such certificates
of deposit, interim receipts or other instruments or documents as
may 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 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 or 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 the Fund which may be in the form of cash or U.S.
government securities or a letter of credit;
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 stock 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 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 principal 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 Instruction.
(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 Written Instruction or Oral Instructions, in
either case specifying with respect to such sale: (1) the name
of the issuer and the title of the Securities; (2) the number of
shares or principal 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 or 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 by the terms of the [Articles of
Incorporation/Master Trust Agreement] 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 each such loan: (a) the
name of the issuer and the title of the Securities; (b) the
number of shares or the principal 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 such 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
principal 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 Instruction); (e) the name of the
broker, dealer or financial institution from which the 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 Instruction.
Securities returned to the Custodian shall be held as they were
prior to such loan.
7. Payment of Dividends or Distributions.
(a) The Fund shall furnish to the Custodian the vote of the
Board of [Directors/Trustees] 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 number 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 understands 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 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 this Section 8, the Custodian shall pay all
original issue or other taxes required to be paid in connection
with such issuance upon the 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 of Securities to be
delivered as collateral for such loan, 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 hereunder as it was prior
to being used as collateral.
10. Persons Having Access to Assets of the Fund.
(a) No trustee 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 adviser, with any
sub-investment adviser of the Fund or with the Fund's
administrator shall have access to the assets of the Fund.
(b) Nothing in this Section 10 shall prohibit any duly
authorized officer, employee or agent of the Fund, or any duly
authorized 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. Notwithstanding any other provision of
this Agreement, 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 or otherwise, except for any
such loss or damage arising out of the gross negligence or
willful misconduct of the Custodian or any of its employees,
Sub-Custodians or agents. 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 not be liable to the Fund for any
loss or damage resulting from the use of the Book-Entry System or
the Depository.
(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 therefor;
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 or 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 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 obligation 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 any 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 time owned by the
Fund. 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 monies 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. Notwithstanding the
generality of the foregoing, however, the Custodian shall not be
liable for any losses resulting from or caused by events or
circumstances beyond its reasonable control, including, but not
limited to, losses resulting from nationalization, expropriation,
devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de
facto or de jure; or enactment, promulgation, imposition or
enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges
affecting the Fund's property; or acts of war, terrorism,
insurrection or revolution; or any other similar act or event
beyond the Custodian's control.
(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
[Articles of Incorporation/Master Trust Agreement] and 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 this 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 Agreement.
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 an
officer or Authorized Person of the Fund. The Custodian shall be
entitled to rely upon any Written Instructions or Oral
Instructions actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by
the Custodian to be genuine and to be 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 on 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) Overdraft Facility and Security for Payment. In the event
that the Custodian is directed by Written Instruction (or Oral
Instructions confirmed in writing in accordance with Section
11(i) hereof) to make any payment or transfer of monies on behalf
of the Fund for which there would be, at the close of business on
the date of such payment or transfer, insufficient monies held by
the Custodian on behalf of the Fund, the Custodian may, in its
sole discretion, provide an overdraft (an "Overdraft") to the
Fund in an amount sufficient to allow the completion of such
payment or transfer. Any Overdraft provided hereunder: (a) shall
be payable on the next Business Day, unless otherwise agreed by
the Fund and the Custodian; and (b) shall accrue interest from
the date of the Overdraft to the date of payment in full by the
Fund at a rate agreed upon in writing, from time to time, by the
Custodian and the Fund. The Custodian and the Fund acknowledge
that the purpose of such Overdraft is to temporarily finance the
purchase of Securities for prompt delivery in accordance with the
terms hereof, to meet unanticipated or unusual redemption, to
allow the settlement of foreign exchange contracts or to meet
other emergency expenses not reasonably foreseeable by the Fund.
The Custodian shall promptly notify the Fund in writing (an
"Overdraft Notice") of any Overdraft by facsimile transmission or
in such other manner as
the Fund and the Custodian may agree in writing. To secure payment of
any Overdraft, the Fund hereby grants to the Custodian a continuing
security interest in and right of setoff against the Securities and cash
in the Fund's account from time to time in the full amount of such Overdraft.
Should the Fund fail to pay promptly any amounts owed hereunder,
the Custodian shall be entitled to use available cash in the
Fund's account and to liquidate Securities in the account as is
necessary to meet the Fund's obligations under the Overdraft. In
any such case, and without limiting the foregoing, the Custodian
shall be entitled to take such other actions(s) or exercise such
other options, powers and rights as the Custodian now or
hereafter has as a secured creditor under the Massachusetts
Uniform Commercial Code or any other applicable law.
(k) 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 the
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 on the date first set
forth above (the "Effective Date") and shall continue in effect
thereafter until such time as this Agreement may be terminated in
accordance with the provisions hereof.
(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 receipt of such notice. In the event such notice is
given by the Fund, it shall be accompanied by a certified vote of
the Board of [Directors/Trustees] 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 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/Trustees]
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 this 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 then 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/Trustees], 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, as provided in the [Articles of Incorporation/Master
Trust Agreement]. The execution and delivery of this Agreement
have been authorized by the [Directors/Trustees] of the Fund, and
signed by an authorized officer of the Fund, acting as such, and
neither such authorization by such [Directors/Trustees] 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 them or any
shareholder of the Fund personally, but shall bind only the
assets and property of the Fund as provided in the [Articles of
Incorporation/Master Trust Agreement].
14. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by
the Secretary of the Fund 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 Persons 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) Annexed hereto as Appendix B is a certification signed by
the Secretary of the Fund setting forth the names and the
signatures of the present officers of the Fund. The Fund agrees
to furnish to the Custodian a new certification in similar form
in the event any such present officer ceases to be an officer of
the Fund or in the event that other or additional officers 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 the signature of an officer
as set forth in the last delivered certification.
(c) 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 at Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 or at such other place as the Custodian may
from time to time designate in writing.
(d) 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 XXXXXXXXXXXXXXX or at such
other place as the Fund may from time to time designate in
writing.
(e) 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, or ratified and
approved by a vote of the Board of [Directors/Trustees] of the
Fund, including a majority of the members of the Board of
[Directors/Trustees] of the Fund who are not "interested persons"
of the Fund (as defined in the 1940 Act), or (ii) authorized, or
ratified and approved by such other procedures as may be
permitted or required by the 1940 Act.
(f) 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 the 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/Trustees] of the
Fund provided, however, that the Custodian may assign the
Agreement to an Affiliated Person and any attempted assignment
without such written consent shall be null and void. Nothing in
this Agreement shall give or be construed to give or confer upon
any third party any rights hereunder.
(g) The Fund represents that a copy of the [Articles of
Incorporation/Master Trust Agreement] is on file with the
Secretary of the [State of Maryland/Commonwealth of
Massachusetts] [and with the Boston City Clerk].
(h) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
(i) 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.
(j) 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.
XXXXXXXXXXXXXXXXXXXXXXXX
By: _______________________
Name:
Title:
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
By: _______________________
Name:
Title:
APPENDIX A
XXXXXXXXXXXX, the Secretary, of XXXXXXXXXXXXXXXXX, a
[corporation/business trust] organized under the laws of the
[State of Maryland/Commonwealth of Massachusetts] (the "Fund"),
do hereby certify that:
The following individuals have been duly authorized as
Authorized Persons to give Oral Instructions and Written
Instructions on behalf of the Fund and the specimen signatures
set forth opposite there respective names are their true and
correct signatures:
Name Signature
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
________________________________
Secretary
Dated:
APPENDIX B
XXXXXXXXXXXXXXXX, the Secretary of XXXXXXXXXXXXXXXXXXXXXX, a
[corporation/business trust] organized under the laws of the
[State of Maryland/Commonwealth of Massachusetts] (the "Fund"),
do hereby certify that:
The following individuals serve in the following positions
with the Fund and each individual has been duly elected or
appointed to each such position and qualified therefor in
conformity with the Fund's [Articles of Incorporation/Master
Trust Agreement] and the specimen signatures set forth opposite
their respective names are their true and correct signatures:
Name Position Signature
Chairman of the Board ______________________________
President ______________________________
Treasurer ______________________________
Secretary ______________________________
Vice President and
Investment Officer ______________________________
Vice President and
Investment Officer ______________________________
________________________________________
Secretary
Dated:
SCHEDULE A
BOSTON SAFE DEPOSIT AND TRUST COMPANY
CUSTODY FEE SCHEDULE
A. Domestic Safekeeping:
B. PLUS $5/security holding charge per month
C. PLUS Transaction charges:
DTC eligible $
Non-DTC eligible $
Fed Book Entry $
Options $
Futures $
GNMA Paydowns $
Repo - depository $
- non-deposit $
Physical - Govt $
Physical - Corp/Muni $
Commercial Paper $
Euro-CDs (London) $
BOSTON SAFE DEPOSIT AND TRUST COMPANY
GLOBAL CUSTODY FEE SCHEDULE
A. Global Safekeeping:
Group I Assets BP
* Group II Assets
First $50 million BP
Next $50 million BP
Next $200 million BP
Excess BP
Group III Assets BP
Group IV Assets BP
Group V Assets BP
Group VI Assets BP
B. PLUS Transaction Charges:
Group I Transactions $
Group II Transactions $
Group III Transactions $
Group IV Transactions $
Group V Transactions $
Group VI Transactions $
* * Third Party F/X $
* The breakpoint levels are based upon assets within each
category.
* * A Third Party F/X is one in which Boston Safe is not the
currency broker. This charge will be assessed only on
transactions where funds are actually transferred.
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 ($5.25 per wire), stamp duties,
securities registration, postage, courier services and
duplication charges.
COUNTRY GROUPS
Group I Group II Group III Group IV Group V Group VI
Japan Euroclear Austria Australia Brazil Mexico
Cedel Canada Belgium Denmark Spain
Germany Luxembourg Finland Sweden
Netherlands France Greece
New Zealand Hong Kong Indonesia
Switzerland Ireland Jordan
Italy Philippines
Malaysia Turkey
Norway Venezuela
Pakistan Argentina
Peru
Poland
Portugal
Shanghai
Shenzen
Singapore
Thailand
United Kingdom
Uruguay
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.
