CUSTODY AGREEMENT
THIS AGREEMENT made the ___ day of _____________, 19__, by and between
INVESTORS FIDUCIARY TRUST COMPANY, a trust company chartered under the laws of
the state of Missouri, having its trust office located at 000 Xxxxxxxxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 ("Custodian"), and Back Bay Funds, Inc., a Maryland
corporation, having its principal office and place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund").
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company as
custodian of the securities and monies of Fund's investment portfolio; and
WHEREAS, Investors Fiduciary Trust Company is willing to
accept such appointment;
NOW THEREFORE, for and in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, mutually
covenant and agree as follows:
1. APPOINTMENT OF CUSTODIAN. Fund hereby constitutes and
appoints Custodian as custodian of the securities and monies
at any time owned by the Fund.
662597.1
1
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to
Custodian:
1. That it is a corporation or trust (as specified
above) duly organized and existing and in good
standing under the laws of its state of organization,
and that it is registered under the Investment
Company Act of 1940 (the "1940 Act"); and
2. That it has the requisite power and authority under
applicable law, its articles of incorporation and
its bylaws to enter into this Agreement; that it
has taken all requisite action necessary to appoint
Custodian as custodian for the Fund; that this
Agreement has been duly executed and delivered by
Fund; and that this Agreement constitutes a legal,
valid and binding obligation of Fund, enforceable
in accordance with its terms.
B. Custodian hereby represents, warrants and acknowledges to
Fund:
1. That it is a trust company duly organized and
existing and in good standing under the laws of the
State of Missouri; and
2. That it has the requisite power and authority under
applicable law, its charter and its bylaws to enter
into and perform this Agreement; that this
662597.1
2
Agreement has been duly executed and delivered by
Custodian; and that this Agreement constitutes a
legal, valid and binding obligation of Custodian,
enforceable in accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery Of Assets
Except as permitted by the 1940 Act, Fund will deliver or
cause to be delivered to Custodian on the effective date of
this Agreement, or as soon thereafter as practicable, and from
time to time thereafter, all portfolio securities acquired by
it and monies then owned by it or from time to time coming
into its possession during the time this Agreement shall
continue in effect. Custodian shall have no responsibility or
liability whatsoever for or on account of securities or monies
not so delivered.
B. Delivery of Accounts and Records
--------------------------------
Fund shall turn over or cause to be turned over to
Custodian all of the Fund's relevant accounts and
records previously maintained. Custodian shall be
entitled to rely conclusively on the completeness and
correctness of the accounts and records turned over to
it, and Fund shall indemnify and hold Custodian
harmless of and from any and all expenses, damages and
losses whatsoever arising out of or in connection with
any error, omission, inaccuracy or other deficiency of
662597.1
3
such accounts and records or in the failure of Fund to
provide, or to provide in a timely manner, any accounts,
records or information needed by the Custodian to perform its
functions hereunder.
C. Delivery of Assets to Third Parties
Custodian will receive delivery of and keep safely the
assets of Fund delivered to it from time to time
segregated in a separate account, and if Fund is
comprised of more than one portfolio of investment
securities (each a "Portfolio") Custodian shall keep
the assets of each Portfolio segregated in a separate
account. Custodian will not deliver, assign, pledge or
hypothecate any such assets to any person except as
permitted by the provisions of this Agreement or any
agreement executed by it according to the terms of
Section 3.S. of this Agreement. Upon delivery of any
such assets to a subcustodian pursuant to Section 3.S.
of this Agreement, Custodian will create and maintain
records identifying those assets which have been
delivered to the subcustodian as belonging to the Fund,
by Portfolio if applicable. The Custodian is
responsible for the safekeeping of the securities and
monies of Fund only until they have been transmitted to
and received by other persons as permitted under the
terms of this Agreement, except for securities and
monies transmitted to subcustodians appointed under
662597.1
4
Section 3.S. of this Agreement, for which Custodian remains
responsible to the extent provided in Section 3.S. hereof.
Custodian may participate directly or indirectly through a
subcustodian in the Depository Trust Company (DTC),
Treasury/Federal Reserve Book Entry System (Fed System),
Participant Trust Company (PTC) or other depository approved
by the Fund (as such entities are defined at 17 CFR Section
270.17f-4(b)) (each a "Depository" and collectively, the
"Depositories").
D. Registration of Securities
The Custodian shall at all times hold registered securities of
the Fund in the name of the Custodian, the Fund, or a nominee
of either of them, unless specifically directed by
instructions to hold such registered securities in so-called
"street name," provided that, in any event, all such
securities and other assets shall be held in an account of the
Custodian containing only assets of the Fund, or only assets
held by the Custodian as a fiduciary or custodian for
customers, and provided further, that the records of the
Custodian at all times shall indicate the Fund or other
customer for which such securities and other assets are held
in such account and the respective interests therein. If,
however, the Fund directs the Custodian to maintain securities
in "street
662597.1
5
name", notwithstanding anything contained herein to the
contrary, the Custodian shall be obligated only to utilize its
best efforts to timely collect income due the Fund on such
securities and to notify the Fund of relevant corporate
actions including, without limitation, pendency of calls,
maturities, tender or exchange offers. All securities, and the
ownership thereof by Fund, which are held by Custodian
hereunder, however, shall at all times be identifiable on the
records of the Custodian. The Fund agrees to hold Custodian
and its nominee harmless for any liability as a shareholder of
record of securities held in custody.
E. Exchange of Securities
Upon receipt of instructions as defined herein in Section 4.A,
Custodian will exchange, or cause to be exchanged, portfolio
securities held by it for the account of Fund for other
securities or cash issued or paid in connection with any
reorganization, recapitalization, merger, consolidation,
split-up of shares, change of par value, conversion or
otherwise, and will deposit any such securities in accordance
with the terms of any reorganization or protective plan.
Without instructions, Custodian is authorized to exchange
securities held by it in temporary form for securities in
definitive form, to effect an exchange of shares when the par
value of the stock is changed, and,
662597.1
6
upon receiving payment therefor, to surrender bonds or other
securities held by it at maturity or when advised of earlier
call for redemption, except that Custodian shall receive
instructions prior to surrendering any convertible security.
F. Purchases of Investments of the Fund
Fund will, on each business day on which a purchase of
securities shall be made by it, deliver to Custodian
instructions which shall specify with respect to each such
purchase:
1. If applicable, the name of the Portfolio making
such purchase;
2. The name of the issuer and description of the
security;
3. The number of shares and the principal amount
purchased, and accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage
commission, taxes and other expenses payable in
connection with the purchase;
7. The total amount payable upon such purchase; and
8. The name of the person from whom or the broker or
dealer through whom the purchase was made.
9. Whether the security is to be received in
certificated form or via a specified Depository.
662597.1
7
In accordance with such instructions, Custodian will pay for out of monies held
for the account of Fund, but only insofar as such monies are available for such
purpose, and receive the portfolio securities so purchased by or for the account
of Fund, except that Custodian may in its sole discretion advance funds to the
Fund which may result in an overdraft because the monies held by the Custodian
on behalf of the Fund are insufficient to pay the total amount payable upon such
purchase. Except as otherwise instructed by Fund, such payment shall be made by
the Custodian only upon receipt of securities: (a) by the Custodian; (b) by a
clearing corporation of a national exchange of which the Custodian is a member;
or (c) by a Depository. Notwithstanding the foregoing, (i) in the case of a
repurchase agreement, the Custodian may release funds to a Depository prior to
the receipt of advice from the Depository that the securities underlying such
repurchase agreement have been transferred by book-entry into the account
maintained with such Depository by the Custodian, on behalf of its customers,
provided that the Custodian's instructions to the Depository require that the
Depository make payment of such funds only upon transfer by book-entry of the
securities underlying the repurchase agreement in such account; (ii) in the case
of time deposits, call account deposits, currency deposits and other deposits,
foreign exchange transactions, futures contracts or options, the Custodian may
make payment therefor before receipt of an advice or confirmation evidencing
said deposit or entry into such transaction; and (iii)
662597.1
8
in the case of the purchase of securities, the settlement of which occurs
outside of the United States of America, the Custodian may make, or cause a
subcustodian appointed pursuant to Section 3.S.2. of this Agreement to make,
payment therefor in accordance with generally accepted local custom and market
practice.
G. Sales and Deliveries of Investments of the Fund - Other than
Options and Futures Fund will, on each business day on which a
sale of investment securities (other than options and futures)
of Fund has been made, deliver to Custodian instructions
specifying with respect to each such sale:
1. If applicable, the name of the Portfolio making such
sale;
2. The name of the issuer and description of the
securities;
3. The number of shares and principal amount sold, and
accrued interest, if any;
4. The date on which the securities sold were purchased
or other information identifying the securities sold
and to be delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage
commission, taxes or other expenses payable in
connection with such sale;
662597.1
9
8. The total amount to be received by Fund upon such
sale; and
9. The name and address of the broker or dealer through
whom or person to whom the sale was made.
In accordance with such instructions, Custodian will deliver or cause
to be delivered the securities thus designated as sold for the account
of Fund to the broker or other person specified in the instructions
relating to such sale. Except as otherwise instructed by Fund, such
delivery shall be made upon receipt of payment therefor: (a) in such
form as is satisfactory to the Custodian; (b) credit to the account of
the Custodian with a clearing corporation of a national securities
exchange of which the Custodian is a member; or (c) credit to the
account of the Custodian, on behalf of its customers, with a
Depository. Notwithstanding the foregoing: (i) in the case of
securities held in physical form, such securities shall be delivered in
accordance with "street delivery custom" to a broker or its clearing
agent; or (ii) in the case of the sale of securities, the settlement of
which occurs outside of the United States of America, the Custodian may
make, or cause a subcustodian appointed pursuant to Section 3.S.2. of
this Agreement to make, payment therefor in accordance with generally
accepted local custom and market practice.
662597.1
10
H. Purchases or Sales of Options and Futures Fund will, on each
business day on which a purchase or sale of the following
options and/or futures shall be made by it, deliver to
Custodian instructions which shall specify with respect to
each such purchase or sale:
1. If applicable, the name of the Portfolio making such
purchase or sale;
2. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening,
exercising, expiring or closing transaction;
g. Whether the transaction involves a put or
call;
h. Whether the option is written or purchased;
i. Market on which option traded; and
j. Name and address of the broker or dealer
through whom the sale or purchase was made.
3. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
662597.1
11
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening,
exercising, expiring or closing transaction;
h. Whether the transaction involves a put or
call;
i. Whether the option is written or purchased;
and
j. The name and address of the broker or dealer
through whom the sale or purchase was made,
or other applicable settlement instructions.
4. Security Index Futures Contracts
a. The last trading date specified in the
contract and, when available, the closing
level, thereof;
b. The index level on the date the contract is
entered into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in
addition to instructions, and if not already
in the possession of Custodian, Fund shall
deliver a substantially complete and
executed custodial safekeeping account and
procedural
662597.1
12
agreement which shall be incorporated by
reference into this Custody Agreement); and
f. The name and address of the futures
commission merchant through whom the sale or
purchase was made, or other applicable
settlement instructions.
5. Options on Index Future Contracts
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening,
exercising, expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
If specifically allowed for in the prospectus of Fund,
and subject to such additional terms and conditions as
Custodian may require:
1. Upon receipt of instructions, Custodian will
release or cause to be released securities held in
custody to the pledgee designated in such
662597.1
13
instructions by way of pledge or hypothecation to
secure any loan incurred by Fund; provided, however,
that the securities shall be released only upon
payment to Custodian of the monies borrowed, except
that in cases where additional collateral is required
to secure a borrowing already made, further
securities may be released or caused to be released
for that purpose upon receipt of instructions. Upon
receipt of instructions, Custodian will pay, but only
from funds available for such purpose, any such loan
upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note
or notes evidencing such loan.
2. Upon receipt of instructions, Custodian will
release securities held in custody to the borrower
designated in such instructions; provided,
however, that the securities will be released only
upon deposit with Custodian of full cash
collateral as specified in such instructions, and
that Fund will retain the right to any dividends,
interest or distribution on such loaned
securities. Upon receipt of instructions and the
loaned securities, Custodian will release the cash
collateral to the borrower.
662597.1
14
J. Routine Matters
Custodian will, in general, attend to all routine and
mechanical matters in connection with the sale, exchange,
substitution, purchase, transfer, or other dealings with
securities or other property of Fund except as may be
otherwise provided in this Agreement or directed from time to
time by the Fund in writing.
K. Deposit Accounts
Custodian will open and maintain one or more special purpose
deposit accounts in the name of Custodian ("Accounts"),
subject only to draft or order by Custodian upon receipt of
instructions. All monies received by Custodian from or for the
account of Fund shall be deposited in said Accounts. Barring
events not in the control of the Custodian such as strikes,
lockouts or labor disputes, riots, war or equipment or
transmission failure or damage, fire, flood, earthquake or
other natural disaster, action or inaction of governmental
authority or other causes beyond its control, at 9:00 a.m.,
Kansas City time, on the second business day after deposit of
any check into an Account, Custodian agrees to make Fed Funds
available to the Fund in the amount of the check. Deposits
made by Federal Reserve wire will be available to the Fund
immediately and ACH wires will be available to the Fund on the
next business day. Income earned on the
662597.1
15
portfolio securities will be credited to the Fund based on the
schedule attached as Exhibit A. The Custodian will be entitled
to reverse any credited amounts where credits have been made
and monies are not finally collected. If monies are collected
after such reversal, the Custodian will credit the Fund in
that amount. Custodian may open and maintain Accounts in its
own banking department, or in such other banks or trust
companies as may be designated by it or by Fund in writing,
all such Accounts, however, to be in the name of Custodian and
subject only to its draft or order. Funds received and held
for the account of different Portfolios shall be maintained in
separate Accounts established for each Portfolio.
L. Income and other Payments to the Fund
Custodian will:
1. Collect, claim and receive and deposit for the
account of Fund all income and other payments
which become due and payable on or after the
effective date of this Agreement with respect to
the securities deposited under this Agreement and
credit the account of Fund in accordance with the
schedule attached hereto as Exhibit A. If, for
any reason, the Fund is credited with income that
is not subsequently collected, Custodian may
reverse that credited amount.
662597.1
16
2. Execute ownership and other certificates and
affidavits for all federal, state and local tax
purposes in connection with the collection of bond
and note coupons; and
3. Take such other action as may be necessary or proper
in connection with:
a. the collection, receipt and
deposit of such income and other payments,
including but not limited to the presentation for
payment of:
1. all coupons and other income items
requiring presentation; and
2. all other securities which may mature
or be called, redeemed, retired or
otherwise become payable and
regarding which the Custodian has
actual knowledge, or should
reasonably be expected to have
knowledge; and
b. the endorsement for collection, in the name
of Fund, of all checks, drafts or other
negotiable instruments.
Custodian, however, will not be required to institute suit or take
other extraordinary action to enforce collection except upon receipt of
instructions and upon being indemnified to its satisfaction against the
costs and expenses of such suit or other actions. Custodian will
receive, claim and collect all stock dividends, rights and
662597.1
17
other similar items and will deal with the same pursuant to
instructions. Unless prior instructions have been received
to the contrary, Custodian will, without further
instructions, sell any rights held for the account of Fund
on the last trade date prior to the date of expiration of
such rights.
M. Payment of Dividends and other Distributions
On the declaration of any dividend or other distribution on
the shares of capital stock of Fund ("Fund Shares") by the
Board of Directors of Fund, Fund shall deliver to Custodian
instructions with respect thereto. On the date specified in
such instructions for the payment of such dividend or other
distribution, Custodian will pay out of the monies held for
the account of Fund, insofar as the same shall be available
for such purposes, and credit to the account of the Dividend
Disbursing Agent for Fund, such amount as may be necessary to
pay the amount per share payable in cash on Fund Shares issued
and outstanding on the record date established by such
resolution.
N. Shares of Fund Purchased by Fund
Whenever any Fund Shares are repurchased or redeemed by Fund,
Fund or its agent shall advise Custodian of the aggregate
dollar amount to be paid for such shares and shall confirm
such advice in writing. Upon receipt of such advice, Custodian
shall charge such aggregate
662597.1
18
dollar amount to the account of Fund and either deposit the
same in the account maintained for the purpose of paying for
the repurchase or redemption of Fund Shares or deliver the
same in accordance with such advice. Custodian shall not have
any duty or responsibility to determine that Fund Shares have
been removed from the proper shareholder account or accounts
or that the proper number of Fund Shares have been cancelled
and removed from the shareholder records.
O. Shares of Fund Purchased from Fund
Whenever Fund Shares are purchased from Fund, Fund will
deposit or cause to be deposited with Custodian the amount
received for such shares. Custodian shall not have any duty or
responsibility to determine that Fund Shares purchased from
Fund have been added to the proper shareholder account or
accounts or that the proper number of such shares have been
added to the shareholder records.
P. Proxies and Notices
Custodian will promptly deliver or mail or have delivered or
mailed to Fund all proxies properly signed, all notices of
meetings, all proxy statements and other notices, requests or
announcements affecting or relating to securities held by
Custodian for Fund and will, upon receipt of instructions,
execute and deliver or cause its nominee to execute and
deliver or
662597.1
19
mail or have delivered or mailed such proxies or other
authorizations as may be required. Except as provided by this
Agreement or pursuant to instructions hereafter received by
Custodian, neither it nor its nominee will exercise any power
inherent in any such securities, including any power to vote
the same, or execute any proxy, power of attorney, or other
similar instrument voting any of such securities, or give any
consent, approval or waiver with respect thereto, or take any
other similar action.
Q. Disbursements
Custodian will pay or cause to be paid, insofar as funds are
available for the purpose, bills, statements and other
obligations of Fund (including but not limited to obligations
in connection with the conversion, exchange or surrender of
securities owned by Fund, interest charges, dividend
disbursements, taxes, management fees, custodian fees, legal
fees, auditors' fees, transfer agents' fees, brokerage
commissions, compensation to personnel, and other operating
expenses of Fund) pursuant to instructions of Fund setting
forth the name of the person to whom payment is to be made,
the amount of the payment, and the purpose of the payment.
662597.1
20
R. Daily Statement of Accounts
Custodian will, within a reasonable time, render to Fund a
detailed statement of the amounts received or paid and of
securities received or delivered for the account of Fund
during each business day. Custodian will, from time to time,
upon request by Fund, render a detailed statement of the
securities and monies held for Fund under this Agreement, and
Custodian will maintain such books and records as are
necessary to enable it to do so. Custodian will permit such
persons as are authorized by Fund, including Fund's
independent public accountants, reasonable access to such
records or will provide reasonable confirmation of the
contents of such records, and if demanded, Custodian will
permit federal and state regulatory agencies to examine the
securities, books and records. Upon the written instructions
of Fund or as demanded by federal or state regulatory
agencies, Custodian will instruct any subcustodian to permit
such persons as are authorized by Fund, including Fund's
independent public accountants, reasonable access to such
records or to provide reasonable confirmation of the contents
of such records, and to permit such agencies to examine the
books, records and securities held by such subcustodian which
relate to Fund.
662597.1
21
S. Appointment of Subcustodians
1. Notwithstanding any other provisions of this
Agreement, all or any of the monies or securities
of Fund may be held in Custodian's own custody or
in the custody of one or more other banks or trust
companies acting as subcustodians as may be
selected by Custodian. Any such subcustodian
selected by the Custodian must have the
qualifications required for a custodian under the
1940 Act, as amended. It is understood that
Custodian initially intends to appoint United
Missouri Bank, N.A. (UMB) and United Missouri
Trust Company of New York (UMTCNY) as
subcustodians. Custodian shall be responsible to
the Fund for any loss, damage or expense suffered
or incurred by the Fund resulting from the actions
or omissions of UMB, UMTCNY and any other
subcustodians selected and appointed by Custodian
(except subcustodians appointed at the request of
Fund and as provided in Subsection 2 below) to the
same extent Custodian would be responsible to the
Fund under Section 5. of this Agreement if it
committed the act or omission itself. Upon
request of the Fund, Custodian shall be willing to
contract with other subcustodians reasonably
acceptable to the Custodian for purposes of (i)
662597.1
22
effecting third-party repurchase transactions with
banks, brokers, dealers, or other entities through
the use of a common custodian or subcustodian, or
(ii) providing depository and clearing agency
services with respect to certain variable rate demand
note securities, or (iii) for other reasonable
purposes specified by Fund; provided, however, that
the Custodian shall be responsible to the Fund for
any loss, damage or expense suffered or incurred by
the Fund resulting from the actions or omissions of
any such subcustodian only to the same extent such
subcustodian is responsible to the Custodian. The
Fund shall be entitled to review the Custodian's
contracts with any such subcustodians appointed at
the request of Fund. Custodian shall be responsible
to the Fund for any loss, damage or expense suffered
or incurred by the Fund resulting from the actions or
omissions of any Depository only to the same extent
such Depository is responsible to Custodian.
2. Notwithstanding any other provisions of this
Agreement, Fund's foreign securities (as defined in
Rule 17f-5(c)(1) under the 0000 Xxx) and Fund's cash
or cash equivalents, in amounts deemed by the Fund to
be reasonably necessary to effect Fund's
662597.1
23
foreign securities transactions, may be held in the
custody of one or more banks or trust companies
acting as subcustodians, and thereafter, pursuant to
a written contract or contracts as approved by Fund's
Board of Directors, may be transferred to accounts
maintained by any such subcustodian with eligible
foreign custodians, as defined in Rule 17f-5(c)(2).
Custodian shall be responsible to the Fund for any
loss, damage or expense suffered or incurred by the
Fund resulting from the actions or omissions of any
foreign subcustodians or a domestic subcustodian
contracting with such foreign subcustodians only to
the same extent such domestic subcustodian is
responsible to the Custodian.
T. Accounts and Records Property of Fund
-------------------------------------
Custodian acknowledges that all of the accounts and
records maintained by Custodian pursuant to this
Agreement are the property of Fund, and will be made
available to Fund for inspection or reproduction within
a reasonable period of time, upon demand. Custodian
will assist Fund's independent auditors, or upon
approval of Fund, or upon demand, any regulatory body,
in any requested review of Fund's accounts and records
but shall be reimbursed by Fund for all expenses and
employee time invested in any such review outside of
662597.1
24
routine and normal periodic reviews. Upon receipt from Fund of
the necessary information or instructions, Custodian will
supply information from the books and records it maintains for
Fund that Fund needs for tax returns, questionnaires, periodic
reports to shareholders and such other reports and information
requests as Fund and Custodian shall agree upon from time to
time.
U. Adoption of Procedures
Custodian and Fund may from time to time adopt procedures as
they agree upon, and Custodian may conclusively assume that no
procedure approved or directed by Fund or its accountants or
other advisors conflicts with or violates any requirements of
its prospectus, articles of incorporation, bylaws, any
applicable law, rule or regulation, or any order, decree or
agreement by which Fund may be bound. Fund will be responsible
to notify Custodian of any changes in statutes, regulations,
rules, requirements or policies which might necessitate
changes in Custodian's responsibilities or procedures.
V. Overdrafts
If Custodian shall in its sole discretion advance funds to the
account of the Fund which results in an overdraft in any
Account because the monies held therein by Custodian on behalf
of the Fund are
662597.1
25
insufficient to pay the total amount payable upon a purchase
of securities as specified in Fund's instructions or for some
other reason, the amount of the overdraft shall be payable by
the Fund to Custodian upon demand together with the overdraft
charge set forth on the then-current Fee Schedule from the
date advanced until the date of payment. Fund hereby grants
Custodian a lien on and security interest in the assets of the
Fund to secure the full amount of any outstanding overdraft
and related overdraft charges.
W. Exercise of Rights; Tender Offers
Upon receipt of instructions, the Custodian shall: (a) deliver
warrants, puts, calls, rights or similar securities to the
issuer or trustee thereof, or to the agent of such issuer or
trustee, for the purpose of exercise or sale, provided that
the new securities, cash or other assets, if any, are to be
delivered to the Custodian; and (b) deposit securities upon
invitations for tenders thereof, provided that the
consideration for such securities is to be paid or delivered
to the Custodian or the tendered securities are to be returned
to the Custodian.
INSTRUCTIONS.
A. The term "instructions", as used herein, means written
(including telecopied or telexed) or oral instructions which
Custodian reasonably believes were given by a designated
662597.1
26
representative of Fund. Fund shall deliver to Custodian, prior to
delivery of any assets to Custodian and thereafter from time to time as
changes therein are necessary, written instructions naming one or more
designated representatives to give instructions in the name and on
behalf of Fund, which instructions may be received and accepted by
Custodian as conclusive evidence of the authority of any designated
representative to act for Fund and may be considered to be in full
force and effect (and Custodian will be fully protected in acting in
reliance thereon) until receipt by Custodian of notice to the contrary.
Unless such written instructions delegating authority to any person to
give instructions specifically limit such authority to specific matters
or require that the approval of anyone else will first have been
obtained, Custodian will be under no obligation to inquire into the
right of such person, acting alone, to give any instructions whatsoever
which Custodian may receive from such person. If Fund fails to provide
Custodian any such instructions naming designated representatives, any
instructions received by Custodian from a person reasonably believed to
be an appropriate representative of Fund shall constitute valid and
proper instructions hereunder.
B. No later than the next business day immediately following each oral
instruction, Fund will send Custodian written confirmation of such oral
instruction. At Custodian's sole
662597.1
27
discretion, Custodian may record on tape, or otherwise, any oral
instruction whether given in person or via telephone, each such
recording identifying the parties, the date and the time of the
beginning and ending of such oral instruction.
LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall at all times use reasonable care and due
diligence and act in good faith in performing its duties
under this Agreement. Custodian shall not be responsible
for, and the Fund shall indemnify and hold Custodian
harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and
liability which may be asserted against Custodian, incurred
by Custodian or for which Custodian may be held to be
liable, arising out of or attributable to:
1. All actions taken by Custodian pursuant to this
Agreement or any instructions provided to it hereunder,
provided that Custodian has acted in good faith and with due
diligence and reasonable care; and
2. The Fund's refusal or failure to comply with the terms of this
Agreement (including without limitation the Fund's failure to
pay or reimburse Custodian under this indemnification
provision), the Fund's negligence or willful misconduct, or
the failure of any representation or warranty of the Fund
hereunder to be
662597.1
28
and remain true and correct in all respects at all
times.
B. Custodian may request and obtain at the expense of Fund the
advice and opinion of counsel for Fund or of its own counsel
with respect to questions or matters of law, and it shall be
without liability to Fund for any action taken or omitted by
it in good faith, in conformity with such advice or opinion.
If Custodian reasonably believes that it could not prudently
act according to the instructions of the Fund or the Fund's
accountants or counsel, it may in its discretion, with
notice to the Fund, not act according to such instructions.
C. Custodian may rely upon the advice and statements of Fund, Fund's
accountants and officers or other authorized individuals, and other
persons believed by it in good faith to be expert in matters upon which
they are consulted, and Custodian shall not be liable for any actions
taken, in good faith, upon such advice and statements.
D. If Fund requests Custodian in any capacity to take any
action which involves the payment of money by Custodian, or
which might make it or its nominee liable for payment of
monies or in any other way, Custodian shall be indemnified
and held harmless by Fund against any liability on account
of such action; provided, however, that nothing herein shall
obligate Custodian to take any such action except in its
sole discretion.
662597.1
29
E. Custodian shall be protected in acting as custodian
hereunder upon any instructions, advice, notice, request,
consent, certificate or other instrument or paper appearing
to it to be genuine and to have been properly executed and
shall be entitled to receive upon request as conclusive
proof of any fact or matter required to be ascertained from
Fund hereunder a certificate signed by an officer or
designated representative of Fund.
F. 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 or for Fund, the legality of the purchase of any securities
or foreign currency positions or evidence of ownership
required by Fund to be received by Custodian, or the propriety
of the decision to purchase or amount paid therefor;
2. The legality of the sale of any securities or foreign
currency positions by or for Fund, or the propriety of
the amount for which the same are sold;
3. The legality of the issue or sale of any Fund Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the repurchase or redemption of any Fund
Shares, or the propriety of the amount to be paid therefor; or
662597.1
30
5. The legality of the declaration of any dividend by Fund, or
the legality of the issue of any Fund Shares in payment of any
stock dividend.
G. Custodian shall not be liable for, or considered to be
Custodian of, any money represented by any check, draft,
wire transfer, clearinghouse funds, uncollected funds, or
instrument for the payment of money to be received by it on
behalf of Fund until Custodian actually receives such money;
provided, however, that it shall advise Fund promptly if it
fails to receive any such money in the ordinary course of
business and shall cooperate with Fund toward the end that
such money shall be received.
H. Except as provided in Section 3.S., Custodian shall not be responsible
for loss occasioned by the acts, neglects, defaults or insolvency of
any broker, bank, trust company, or any other person with whom
Custodian may deal.
I. Custodian shall not be responsible or liable for the failure
or delay in performance of its obligations under this
Agreement, or those of any entity for which it is
responsible hereunder, arising out of or caused, directly or
indirectly, by circumstances beyond the affected entity's
reasonable control, including, without limitations: any
interruption, loss or malfunction of any utility,
transportation, computer (hardware or software) or
communication service; inability to obtain labor, material,
equipment or transportation, or a delay in mails;
662597.1
31
governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes, freezes,
floods, fires, tornados, acts of God or public enemy, revolutions, or
insurrection.
J. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY TO THIS
AGREEMENT BE LIABLE TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE
OTHER PARTY, FOR CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY ACT
OR FAILURE TO ACT UNDER ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED
OF THIS POSSIBILITY THEREOF.
6. COMPENSATION. In consideration for its services hereunder,
------------
Fund will pay to Custodian such compensation as shall be set
forth in a separate fee schedule to be agreed to by Fund and
Custodian from time to time. A copy of the initial fee
schedule is attached hereto and incorporated herein by
reference. Custodian shall also be entitled to receive, and
Fund agrees to pay to Custodian, on demand, reimbursement
for Custodian's cash disbursements and reasonable out-of-
pocket costs and expenses, including attorney's fees,
incurred by Custodian in connection with the performance of
services hereunder. Custodian may charge such compensation
against monies held by it for the account of Fund.
Custodian will also be entitled to charge against any monies
662597.1
32
held by it for the account of Fund the amount of any loss, damage,
liability, advance, overdraft or expense for which it shall be entitled
to reimbursement from Fund, including but not limited to fees and
expenses due to Custodian for other services provided to the Fund by
Custodian. Custodian will be entitled to reimbursement by the Fund for
the losses, damages, liabilities, advances, overdrafts and expenses of
subcustodians only to the extent that (i) Custodian would have been
entitled to reimbursement hereunder if it had incurred the same itself
directly, and (ii) Custodian is obligated to reimburse the subcustodian
therefor.
7. TERM AND TERMINATION. The initial term of this Agreement
--------------------
shall be for a period of __________. Thereafter, either
party to this Agreement may terminate the same by notice in
writing, delivered or mailed, postage prepaid, to the other
party hereto and received not less than ninety (90) days
prior to the date upon which such termination will take
effect. Upon termination of this Agreement, Fund will pay
Custodian its fees and compensation due hereunder and its
reimbursable disbursements, costs and expenses paid or
incurred to such date and Fund shall designate a successor
custodian by notice in writing to Custodian by the
termination date. In the event no written order designating
a successor custodian has been delivered to Custodian on or
before the date when such termination becomes effective,
662597.1
33
then Custodian may, at its option, deliver the securities, funds and
properties of Fund to a bank or trust company at the selection of
Custodian, and meeting the qualifications for custodian set forth in
the 1940 Act and having not less than Two Million Dollars ($2,000,000)
aggregate capital, surplus and undivided profits, as shown by its last
published report, or apply to a court of competent jurisdiction for the
appointment of a successor custodian or other proper relief, or take
any other lawful action under the circumstances; provided, however,
that Fund shall reimburse Custodian for its costs and expenses,
including reasonable attorney's fees, incurred in connection therewith.
Custodian will, upon termination of this Agreement and payment of all
sums due to Custodian from Fund hereunder or otherwise, deliver to the
successor custodian so specified or appointed, or as specified by the
court, at Custodian's office, all securities then held by Custodian
hereunder, duly endorsed and in form for transfer, and all funds and
other properties of Fund deposited with or held by Custodian hereunder,
and Custodian will co-operate in effecting changes in book-entries at
all Depositories. Upon delivery to a successor custodian or as
specified by the court, Custodian will have no further obligations or
liabilities under this Agreement. Thereafter such successor will be the
successor custodian under this Agreement and will be entitled to
reasonable compensation for its
662597.1
34
services. 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 Fund to appoint a successor custodian,
the Custodian shall be entitled to compensation as provided in the
then-current fee schedule hereunder for its services during such period
as the Custodian retains possession of such securities, funds and other
properties, and the provisions of this Agreement relating to the duties
and obligations of the Custodian shall remain in full force and effect.
8. NOTICES. Notices, requests, instructions and other writings addressed to Fund
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as Fund
may have designated to Custodian in writing, will be deemed to have been
properly given to Fund hereunder; and notices, requests, instructions and other
writings addressed to Custodian at its offices at 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Custody Department, or to such other address as
it may have designated to Fund in writing, will be deemed to have been properly
given to Custodian hereunder. 9. MULTIPLE PORTFOLIOS. If Fund is comprised of
more than one Portfolio:
A. Each Portfolio shall be regarded for all purposes
hereunder as a separate party apart from each other
Portfolio. Unless the context otherwise requires,
with respect to every transaction
662597.1
35
covered by this Agreement, every reference herein to
the Fund shall be deemed to relate solely to the
particular Portfolio to which such transaction
relates. Under no circumstances shall the rights,
obligations or remedies with respect to a particular
Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this
single document to memorialize the separate agreement
of each Portfolio is understood to be for clerical
convenience only and shall not constitute any basis
for joining the Portfolios for any reason.
B. Additional Portfolios may be added to this Agreement,
provided that Custodian consents to such addition.
Rates or charges for each additional Portfolio shall
be as agreed upon by Custodian and Fund in writing.
10. MISCELLANEOUS.
A. This Agreement shall be construed according to, and
the rights and liabilities of the parties hereto
shall be governed by, the laws of the State of
Missouri, without reference to the choice of laws
principles thereof.
B. All terms and provisions of this Agreement shall
be binding upon, inure to the benefit of and be
662597.1
36
enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties and the
indemnifications extended hereunder are intended to
and shall continue after and survive the expiration,
termination or cancellation of this Agreement.
D. No provisions of the Agreement may be amended or
modified in any manner except by a written agreement
properly authorized and executed by each party
hereto.
E. The failure of either party to insist upon the
performance of any terms or conditions of this
Agreement or to enforce any rights resulting from
any breach of any of the terms or conditions of
this Agreement, including the payment of damages,
shall not be construed as a continuing or
permanent waiver of any such terms, conditions,
rights or privileges, but the same shall continue
and remain in full force and effect as if no such
forbearance or waiver had occurred. No waiver,
release or discharge of any party's rights
hereunder shall be effective unless contained in a
written instrument signed by the party sought to
be charged.
662597.1
37
F. The captions in 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.
G. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an
original but all of which together shall constitute
one and the same instrument.
H. If any part, term or provision of this Agreement
is determined by the courts or any regulatory
authority to be illegal, in conflict with any law
or otherwise invalid, the remaining portion or
portions shall be considered severable and not be
affected, and the rights and obligations of the
parties shall be construed and enforced as if the
Agreement did not contain the particular part,
term or provision held to be illegal or invalid.
I. This Agreement may not be assigned by either party
hereto without the prior written consent of the other
party.
J. Neither the execution nor performance of this
Agreement shall be deemed to create a partnership or
joint venture by and between Custodian and Fund.
K. Except as specifically provided herein, this
Agreement does not in any way affect any other
662597.1
38
agreements entered into among the parties hereto and
any actions taken or omitted by either party
hereunder shall not affect any rights or obligations
of the other party hereunder.
662597.1
39
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their respective duly authorized
officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:______________________________
Title:___________________________
BACK BAY FUNDS, INC.
By:______________________________
Title:___________________________
662597.1
40
EXHIBIT A
INVESTORS FIDUCIARY TRUST COMPANY
AVAILABILITY SCHEDULE BY TRANSACTION TYPE
TRANSACTION DTC PHYSICAL FED
----------- --- -------- ---
TYPE CREDIT DATE FUNDS TYPE CREDIT DATE FUNDS TYPE CREDIT DATE FUNDS TYPE
------------------------- ------------------ ---------------- --------------------- -------------- ---------------- ------------
Calls Put As Received C or F* As Received C or F*
Maturities As Received C or F* Mat. Date C or F* Mat. Date F
Tender Reorgs. As Received C As Received C N/A
Dividends Paydate C Paydate C N/A
Floating Rate Int. Paydate C Paydate C N/A
Floating Rate Int. N/A As Rate C N/A
(No Rate) Received
Mtg. Backed P&I Paydate C Paydate + 1 C Paydate F
Bus. Day
Fixed Rate Inc. Paydate C Paydate C Paydate F
Euroclear N/A Paydate C
Legend
C = Clearinghouse Funds F = Fed Funds N/A = Not Applicable * Availability based
on how received.
662597.1
41
