Ex-99.8
CUSTODY AGREEMENT
AGREEMENT made as of this 22nd day of January, 1982,
between XXXXXXX XXXXX. RETIREMENT SERIES TRUST, a business
trust, organized and existing under the laws of the Common-
wealth of Massachusetts, having its principal office and
place of business at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
X.X.X. (hereinafter called the "Fund"), and THE BANK OF NEW
YORK, a corporation organized and existing under the laws of
the State of New York, having its principal office and place
of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
X.X.X. (hereinafter called the "Custodian") and an office at
000 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx XX0X 0XX.
W I T N E S S E T H:
That for and in consideration of the mutual promises
hereinafter set forth, the parties hereto covenant and agree
as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, the following words
and phrases shall have the following meanings:
1. "Authorized Person" shall be deemed to include the
Treasurer, the Controller or any other person, whether or
not any such person is an Officer or employee of the Fund,
duly authorized by the Board of Trustees of the Fund to give
Oral Instructions and Written Instructions on behalf of the
Fund and listed in the Certificate annexed hereto as Xxxxx-
xxx A or such other Certificate as may be received by the
Custodian from time to time.
2. "Book-Entry System" shall mean the Federal
Reserve/Treasury book-entry system for the United States
government and federal agency securities, its successor or
successors and its nominee rr nominees.
3. "Certificate" shall mean any notice, instructions,
or other instrument in writing, authorized. or required by
this Agreement to be given to the Custodian which is actu-
ally received by the Custodian and signed, or reasonably
believed by the Custodian to have been signed, on behalf of
the Fund by any two Officers of the Fund.
4. "Depository" shall mean The Depository Trust Com-
pany ("DTC"), a clearing agency registered with the Secu-
rities and Exchange Commission, its successor or successors
and its nominee or nominees, provided the Custodian has
received a certified copy of a resolution of the Fund's
Board of Trustees specifically approving deposits in DTC.
The term "Depository" shall further mean and include any
other person authorized to act as a depository under the
Investment Company Act of 1940, its successor or successors
and its nominee or nominees, specifically identified in a
certified copy of a resolution of the Funds Board of
Trustees approving deposits therein by the Custodian.
5. "Money Market Security" shall be deemed to
include, without limitation, short term United States
government securities, government agency securities, certif-
icates of deposit, variable rate certificates of deposits,
bankers' acceptances, Eurodollar and Yankee dollar obliga-
tions, non-convertible corporate debt instruments, com-
mercial paper, and repurchase and reverse repurchase agree-
ments.
6. "Officers" shall be deemed to include the Presi-
dent, any Vice President, the Secretary, the Treasurer, the
Controller, any Assistant Controller, any Assistant Treas-
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urer, or any other person or persons duly authorized "by the
Board of Trustees of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the
Fund and listed in the Certificate annexed hereto as
Appendix B or such other Certificate as may be received-by
the Custodian from time to time.
7. "Oral Instructions" shall mean verbal instructions
actually received by the Custodian from-an Authorized Person
or from a person reasonably believed by the Custodian to be
an Authorized Person.
8. "Security" shall be deemed to include, without
limitation, Money Market Securities and such other secu-
rities which the Company is authorized to invest in pursuant
to its current prospectus.
9. "Series" shall mean each separate series compris-
ing the Fund, each of which is a separate portfolio offering
a separate class of shares of beneficial interest of the
Fund. The first Series of the Fund has been designated
"Xxxxxxx Xxxxx Retirement Reserves Money Fund".
10. "Shares" shall mean shares of beneficial interest
of the Fund each of which is allocated to a particular
Series.
11. "Written Instructions" shall mean written communi-
cations actually received by the Custodian from an Author-
ized Person or from A person reasonably believed by thL-
Custodian to be an Authorized Person by telex or any other
such system whereby the receiver of such communications is
able to verify by codes or otherwise with a reasonable
degree of certainty the authenticity of the sender of such
communication.
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ARTICLE II
APPOINTMENT OF CUSTODIAN
------------------------
1. The Fund hereby constitutes and appoints the
Custodian as custodian of all Securities and moneys owned by
each Series of the Fund during the period of this Agreement.
2. The Custodian hereby accepts appointment as said
custodian and agrees to perform the duties thereof as here-
inafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
------------------------------
1. The Fund will deliver or cause to be delivered
to the Custodian all Securities and moneys owned by each
series, including cash received for the issuance of Sharies,
during the period of this Agreement and shall specify the
Series to which the same are specifically allocated. The
Custodian shall segregate keep, and maintain the assets of
the Series separate and apart. The Custodian will not be
responsible for such Securities and such moneys until
actually received by it. The Custodian will be entitled to
reverse any credits made for a Series on the Fund's behalf
which such credits have been previously made and moneys are
not finally collected. The Fund shall deliver to the
Custodian a certified resolution of the Board of Trustees of
the Fund approving, authorizing and instructing the
Custodian on a continuous and on-going basis to deposit in
the Book-Entry System all Securities eligible for deposit
therein, regardless of the Series to which the same are
specifically allocated, and to utilize the Book-Entry System
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to the extent possible in connection with its performance
hereunder, including, without limitation, in connection with
settlements of purchases and sales of Securities, loans of
Securities and deliveries and returns of Securities colla-
teral, regardless of the Series to which the same are speci-
fically allocated. Prior to the deposit of Securities of
the Fund in the Depository, the Custodian shall have
received a certified resolution of the Board of Trustees of
the Fund approving, authorizing and Instructing the Custo-
dian on a continuous and ongoing basis until instructed to
the contrary by a Certificate actually received by the
Custodian to deposit in the Depository all securities
eligible for deposit therein, and to utilize the Depository
to the extent possible in connection with its performance
hereunder, including, without limitation, in connection with
settlements of purchases and sales of Securities, loans of
Securities and deliveries and returns of Securities collat-
eral regardless of the Series to which the same are specif-
ically allocated. Securities and moneys of a Series
deposited in either 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 in which the Custodian acts in a
fiduciary or representative capacity and shall be specif
cally allocatd on the Custodian's books to the separate
account for such Series.
2. The Custodian shall establish and maintain sepa-
rate accounts, in the name of each series of the Fund, and
shall credit to the separate account established and main-
tained for a particular Series all moneys received by it for
the account of the Fund with respect to such Series. Moneys
credited to a separate account for a Series shall be dis-
bursed by the Custodian only:
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(a) In payment for Securities purchased for such
Series, as provided in Article IV hereof;.
(b) In payment of dividends or distributions with
respect to Shares of such Series, as provided in Article V
hereof;
(c) In payment of original issue or other taxes
with respect to the Shares of such Series, as provided in
Article VI hereof;
(d) In payment for Shares of such Series
redeemed by it, as provided in Article VI hereof;'
(e) Pursuant to a Certificate, setting forth the
name and address of the person. to whom the payment is to be
made, the amount to be paid, the Series account from which
the payment is to be made, and the purpose for which payment
is to be made; or
(f) In payment of the fees and in reimbursement
of the expenses and liabilities of the Custodian attribut-
able to such Series, as provided in Article IX hereof.
3. Promptly after the close of business on each day
the Custodian shall furnish the Fund with a written state-
ment (i) summarizing all transactions and entries for the
account of each series of the Fund during said day and
specifying the Series to which each transaction and entry
relates, and (ii) confirming any purchase or sale of Securi-
ties during said day and specifying the Series to which each
purchase or sale relates. Where Securities are transferred
to the account of any series of the Fund for a Series, the
Custodian shall also by book entry or otherwise identify as
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belonging to such series and specifically allocated to such
Series a quantity of Securities 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 Book-Entry System or the Depository. At least monthly
and from time to time, the Custodian shall furnish the Fund
with a detailed statement of the Securities and moneys held
for each series of the Fund under this Agreement with
respect to each Series.
4. All Securities held for the Series of the Fund,
which are issued or issuable only in bearer form, except
such Securities as are held in the Book-Entry System, shall
be held by the Custodian in that form; all other Securities
held for the Fund may be registered in the name of the Fund,
in the name of any duly appointed registered nominee of the
Custodian as the Custodian may from time to time determine,
or in the name of the Book-Entry System or the Depository,
or their successor or successors, or their nominee or
nominees. The Fund 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 a series 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 which are
specifically allocated to a Series and not held in the Book-
Entry System or in the Depository in separate accounts in
the name of each series of the Fund for such Series physic-
ally segregated at all times from those of any other person
or persons.
5. Unless otherwise instructed to the contrary by a
Certificate, the Custodian by itself, or through the use of
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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:
(a) Collect all income due or payable;
(b) Present for payment and collect the amount
payable upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become payable;
(c) Surrender Securities in temporary form for
definitive Securities;
(d) Execute, as custodian, any necessary declara-
tions or certificates of ownership under the Federal Income
Tax Laws or the laws rr regulations of any other taxing
authority now or hereafter in effect;
(e) Hold directly, or through the Book-Entry Sys-
tem or the Depository with respect to Securities therein
deposited, for the account of the Fund and the particular
Series all rights and similar securities is sued with respect
to any Securities held by the Custodian for such Series
hereunder; and
6. Upon receipt of a Certificate and not otherwise,
the Custodian, directly or through the use of the Book-Entry
System or the Depository, shall:
(a) Execute and deliver to such persons as may be
designated in such Certificate, consents, authorizations,
and any other instruments whereby the authority of the
Fund as owner of any Securities held -for the Series speci-
fied in such Certificate may be exercised;
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(b) Deliver any Securities held for the Series
specified in such Certificate in exchange for other Securi-
ties or cash issued or paid in connection with the liquids-
tion, reorganization, or refinancing, merger, consolidation
or recapitalization of any corporation, or exercise of any
conversion privilege and receive and hold hereunder specifi-
cally allocated to such Series any cash or other Securities
received in exchange;
(c) Deliver any Securities held for the Series
specified in the Certificate to any. protective committee,
reorganization committee or other person in connection with
the reorganization, refinancing, merger, consolidation, re-
capitalization or sale of assets of any corporation, and
receive and hold under the terms of this Agreement specifi-
cally allocated to such Series such certificates of deposit,
interim receipts or other instruments or documents as may be
issued to it to evidence such delivery; and
(d) Make such transfers or exchanges of the
assets of the Series specified in such Certificate ,and take
such other steps as shall be stated in said Certificate to
be for the purpose of effectuating any duly authorized plan
of liquidation, reorganization, merger, consolidation or re-
capitalization of the Fund.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
--------------------------------------------
1. Promptly after each purchase of Securities by the
Fund, for any of its Series, the Fund shall deliver to the
Custodian a Certificate, or with respect to a purchase of
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Money Market Securities, a Certificate, Written Instructions
or Oral Instructions, specifying with respect to each such
purchase: (a) the Series to which the purchased Securities
are to be specifically allocated, (b) the name of the issuer
and the title of the Securities, (c)the number of. shares or
the principal amount purchased and accrued interest, if any,
(d) the date of purchase and settlement, (e) the purchase
price per unit, including accrued interest, if any, (f ) the
total amount payable upon such purchase, including accrued
interest, if any, and (g) the name of the person from whom
or the broker through whom the purchase was. made. The
Custodian shall upon receipt of Securities purchased by or
for the Fund pay out of the moneys held for the account of
the Series to which the purchased Securities are to be
specifically allocated the total amount payable to the
person from whom or the broker through whom the purchase was
made, provided that the same conforms to the total amount
payable as set forth in such Certificate, Written Instruct-
ions, or Oral Instructions.
2. Promptly after each sale of Securities by the
Fund, the Fund shall deliver to the Custodian a Certificate,
or with respect to a sale of Money Market Securities, a
Certificate, Written Instructions or Oral Instructions,
specifying with respect to each sale: (a) the Series to
which such Securities were specifically allocated, (b) the
name of the issuer and the title of the Security,(c) the
principal amount sold, and accrued interest if any,(f) the
total amount payable to the Fund upon such sale, including
accrued interest, if any, and (g) the name of the, broker
through whom or the person to whom the sale was made. The
Custodian shall deliver the Securities upon receipt of the
total amount payable to the Fund upon such sale, provided
that the same conforms to the total amount payable as set
forth in such Certificate, Written Instructions or Oral
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Instructions. 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.
ARTICLE V
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
-------------------------------------
1. The Fund shall furnish to. the Custodian a copy
of the resolution or resolutions of the Board of Trustees,
certified by the Secretary or any Assistant Secretary,
either (i) setting forth with respect to the Series speci-
fied therein the date of the declaration of a dividend or
distribution, the date of payment thereof, the record date
as of which shareholders entitled to payment shall be deter-
mined, the amount payable per Share of such Series to the
shareholders of record as of that date and-.the total amount
payable to the Transfer Agent of the Fund on the payment
date, or (ii) authorizing With respect to the Seriee speci-
fied therein the declaration of dividends and distributions
on a daily basis' and authorizing the Custodian to rely on
Oral Instructions, Written Instructions, or a Certificate
setting forth the date of the declaration of such dividend
or distribution, the date of payment thereof, the record
date as of which shareholders entitled to payment shall, be
determined, the amount payable per Share of such Series to
the shareholders of record as of that date and the total
amount payable to the Transfer Agent on the payment date.
2. Upon the payment date specified in such resolu-
tion, Oral Instructions, Written Instructions, or Certifi-
cate, as the case may be, the Custodian shall pay out of the
moneys held for the account of the Fund the total amount
payable to the Transfer Agent of the Fund.
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ARTICLE VI
SALE AND_REDEMPTION OF SHARES OF BENEFICIAL INTEREST
----------------------------------------------------
OF THE FUND
-----------
1. Whenever the Fund shall sell any Shares of benefi-
cial interest of any Series, it shall deliver to the
Custodian a Certificate duly specifying:
(a) The Series, number of Shares sold, trade
date, and price; and
(b) The amount of money to be received by the
Custodian for the sale of such Shares and specifically allo-
cated to the separate account in the name of the Fund for
such Series.
2. Upon receipt of such money from the Transfer
Agent, the Custodian shall credit such money to the separate
account in the name of the Fund for the Series for which
such money was received.
3. Upon issuance of any Shares in accordance with the
foregoing provisions of this Article, the Custodian shall
pay, out of the money held in the separate account in the
name of the Fund for the Series of Shares issued, all
original issue or other taxes required to be paid by the
Fund in connection with such issuance upon the receipt of a
Certificate specifying the amount to be paid.
4. Whenever the Fund shall hereafter redeem any
Shares it shall furnish to the Custodian a Certificate
specifying:
(a) The Series and number of Shares redeemed; and
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(b) The amount to be paid for the Shares of such
Series redeemed.
5. Upon receipt from the Transfer Agent of an advice
setting forth the Series and number of Shares received by
the Transfer Agent for redemption and stating that such
Shares are valid and in good form for redemption, the Custo-
dian shall make payment to the Transfer Agent out of the
moneys held in the separate account in the name of the
Series of the Fund for such Series of the total amount
specified in the Certificate issued pursuant to the fore-
going paragraph 4 of this Article.
6. Notwithstanding the above provisions regarding the
redemption of any shares of the beneficial interest of the
Fund, whenever shares of the beneficial interest of the Fund
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 Certificate,
shall, upon receipt of an advice from the Fund or its agent
setting forth that the redemption is in good form for
redemption in accordance with the check redemption proce-
dure, honor the check presented as part of such check
redemption privilege out of the money held in the account of
the Fund for such purposes.
ARTICLE VII
OVERDRAFTS OR INDEBTEDNESS
--------------------------
1. If the Custodian should in its sole discretion
advance funds on behalf of any series of the Fund for a
Series which results in an overdraft because the moneys held
by the Custodian in the separate account in the name of the
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Fund for such Series shall be insufficient to pay the total
amount payable upon purchase of Securities to be specifi-
cally allocated to such Series as set forth in a Certifi-
cate, Written Instructions or Oral Instructions issued
pursuant to Article IV, or which results in an overdraft in
the account for such Series for some other reason, or if the
Fund is for any other reason indebted to the Custodian with
respect to a Series, (other than a borrowing for investment
or for temporary or emergency purposes using Securities as
collateral pursuant to a separate agreement and subject to
the provisions of paragraph 2 of this Article) such over-
draft or indebtedness shall be deemed to be a loan made by
the Custodian to the Fund for such Series payable on demand
and shall bear interest from the date incurred at a rate per
annum (based on a 360-day year foe the actual number of days
involved) equal to 1/2% over Custodian's prime commercial
lending rate in effect from time to time, such rate to be
adjusted on the effective date of any change in such prime
commercial lending rate but in no event to be less than 6%
per annum. In addition thereto the Fund hereby agrees that
the Custodian shall have a continuing lien and security
interest in and to any property specifically allocated to
such Series at any time held by it for the benefit of the
Series deemed to have made such loan or in which the Series
deemed to have made such loan may have an interest which is
then in the Custodian's possession or control or in possess-
ion or control of any third party acting in the Custodian's
behalf. The Fund authorizes the Custodian, in its sole
discretion, at any time to charge any such overdraft or
indebtedness together with interest due thereon against any
balance of account standing to the Fund's credit on the
Custodian's books and specifically allocated to such Series.
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2. The Fund will cause to be delivered to the
Custodian by any bank (including the Custodian) from which
anyseries borrows money for temporary 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 a Certifi-
cate specifying with respect to each such borrowing. (a)
the Series to which such borrowing relates, (b) the name of
the bank, (c) 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, (d) the time and date, if known, on which the
loan is to be entered into (the "borrowing date"), (e) the
date on which the loan becomes due and payable, (f) the
total amount payable to the Fund on the borrowing date, (g)
the market value of Securities specifically allocated to
such Series 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 Securi-
ties, (h) whether the Custodian is to deliver such collate-
ral through the Depository, and (i) a statement that such
loan for temporary or emergency purposes is in conformance
with the Investment Company Act of 1940 and the Fund's cur-
rent prospectus. The Custodian shall deliver on the borrow-
ing date such specified collateral and the executed promis-
sory 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
Certificate. The Custodian may, at the option of the lend-
ing 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 agree-
ment. The Custodian shall deliver in the manner directed by
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the Fund from time to time such Securities as additional
collateral as may be specified in a Certificate to colla-
teralize further any transaction described in this para-
graph. 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
returns of collateral as may be tendered to it. In the
event the Custodian fails to -specify in a Certificate the
name of the issuer, the title and number of Shares or the
principal amount of any particular Securities to be deliver-
ed as collateral by the Custodian, 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.
ARTICLE VIII
LOAN OF PORTFOLIO SECURITIES OF THE FUND
----------------------------------------
1. If the Fund is permitted by the terms of its
Declaration of Trust and its most recent and currently
effective prospectus to lend portfolio Securities speci-
fically allocated to a Series, within 24 hours after each
loan of portfolio Securities the Fund shall deliver or cause
to be delivered to the Custodian a Certificate 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, (e) the date of loan and
delivery, (d) the total amount to be delivered to the Custo-
xxxx against the loan of the Securities, including the
amount of cash collateral and the premium, if any, separate-
ly identified, (e) the name of the broker, dealer, or xxxxx-
cial institution to which the loan was made, and (f) the
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name of the Series to which the loaned Securities are speci-
fically allocated. The Custodian shall deliver the Securi-
ties thus designated to the broker, dealer or financial
institution to which the loan was made upon receipt of the
total amount designated as to be delivered against the loan
of Securities. The Custodian may accept payment in connect-
ion with a delivery otherwise than through the Book Entry
System or Depository only in the form of a certified or bank
cashier's check payable to the order of the Fund or the
Custodian drawn on. New York Clearing House funds and may
deliver Securities in accordance with the customs prevailing
among dealers in securities.
2. Promptly after each termination of the loan of
Securities by the Fund, the Fund shall deliver or cause to
be delivered to the Custodian a Certificate specifying with
respect to each such loan termination and return of securi-
ties: (a) the name of the issuer and the title of the Secu-
rities to be returned, (b) the number of shares or the prin-
cipal 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. Certificate), (e)
the name of the broker, dealer, or financial institution
from which the Securities will be returned, and (f) the name
of the Series to which the loaned Securities are specifi-
cally allocated. The Custodian shall receive all Securities
returned. from the broker, dealer, or financial institution
to which such Securities were loaned and upon receipt there-
of shall pay, out of the moneys held for the account of the
Fund, the total amount payable upon such return of Securi-
ties as set forth in the Certificate.
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ARTICLE X
CONCERNING THE CUSTODIAN
1. Except as hereinafter provided, neither the Custo-
xxxx nor its nominee shall be liable for any loss or damage
including counsel fees, resulting from its action or omis-
sion to act or otherwise, except for any such loss or damage
arising out of its own negligence or willful misconduct.
The Custodian may, with respect to questions of law, apply
for and obtain the advice and opinion of counsel to the Fund
or of its own counsel, at the expense of the Fund, and shall
be fully protected with respect to anything it does or fails
to do in good faith in conf ormity with such advice or
opinion. The Custodian shall be liable to the Fund for any
loss or damage resulting from the use of the Book-Entry
System or any Depository arising by reason of any negli-
gence, misfeasance or misconduct on the part of the Custo-
xxxx or any of its employees or agents.
2. Without limiting the generality of the foregoing,
the Custodian shall be under no obligation to inquire into,
and shall not be liable for:
(a) The validity of the issue of any Securities
purchased by or for the Fund, the legality of the purchase
thereof or the propriety of the amount paid therefor;
(b) The legality of the sale of any Securities by
or for the Fund, or the propriety of the amount for which
the same are sold;
(a) The legality of the issue or sale of any
shares of the Fund, or the sufficiency of the amount to be
received therefor;
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(d) The legality of the redemption of any.-shares
of the Fund, or the propriety of the amount to be paid
therefor;
(e) The legality of the declaration or.payment of
any dividend by the Fund;
(f) The legality of any borrowing by the Fund
using Securities as collateral; or
(g) The legality of any loan of portfolio Securi-
ties pursuant to Article VIII of this Agreement, nor shall
the Custodian be under any duty or obligation to see to it
that any collateral delivered to it by a broker, dealer, or
financial institution or held by it at any time as a result
of such loan of portfolio Securities of the Fund is adequate
collateral for the Fund against any loss it night sustain as
a result of such loan. The Custodian specifically, but not
by way of limitation, shall not be under any duty or obliga-
tion periodically to check or notify the Fund that the
amount of such collateral held by it for the Fund id suffi-
cient collateral for the Fund, but such duty or obligation
shall be the sole responsibility of the Fund. In addition,
the Custodian shall be under no duty or obligation to see
that any broker, dealer or of financial institution to which
portfolio Securities of the Fund are lent pursuant to
Article VIII of this Agreement makes, payment to it of any
dividends or interest which are payable to or for the
account of the Fund during the period of such loan or at the
termination of such loan, provided, however, that the Custo-
xxxx shall promptly notify the Fund in the event that such
dividends or interest are not paid and received when due.
3. The Custodian shall not be liable for, or consid-
ered to be the Custodian of, any money, whether or not rep-
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resented 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 at the Book-Entry System or
the Depository.
4. 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 of the Fund nor to
take any action to effect payment or distribution by the
Transfer Agent of the Fund of any amount paid by the
Custodian to the Transfer Agent of the Fund in accordance
with this Agreement.
5. 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 (I) it shall be directed to
take such action by a Certificate and (II) it shall be
assured to its satisfaction of reimbursement of its costs
and expenses in connection with any such action.
6. The Custodian may appoint one or more banking in
stitutions as Depository or Depositories or as Sub-Custodian
or Sub-Custodians, including, but not limited to, banking
institutions located in foreign countries, of Securities and
moneys at any time owned by the Fund, upon terms and con-
ditions approved in a Certificate.
7. The Custodian shall not be under any duty or obli-
gation to ascertain whether any Securities at any time de-
livered to or held by it for the account of the Fund and
-20-
specifically allocated to a Series are such as properly may
be held by the Fund and allocated to such Series under the
provisions of its Declaration of Trust.
8. The Custodian shall be entitled to receive and the
Fund agrees to pay to the Custodian with respect to each
Series such compensation as may be agreed upon from time to
time between the Custodian and the Fund. The Custodian may
charge such compensation and any expenses incurred by the
Custodian in the performance of its duties with respect to a
Series pursuant to such agreement against any moneys speci-
fically allocated to such Series. Unless and until the Fund
instructs the Custodian by a Certificate to apportion any
loss, damage, liability or expenses among the Series in a
different manner, the Custodian shall also be entitled to
charge against any money held by it for the account of a
Series such Series' pro rata share (based on the relation-
ship of such Series' net-asset value at the time of the
change to the aggregate net asset value of all Series at
that time) the amount of any loss, damage, liability or
expense (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 the account of a Series include, but are not limited
to the expenss of Sub-Custodians and foreign branches of
the Custodian incurred in setting outside of New York City
transactions involving the purchase and sale of Securities
of such Series.
9. 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 a Certificate. Tne Custodian shall be
entitled to rely upon any Oral Instructions and any Written
-21-
Instructions actually received by the Custodian pursuant to
Articles IV and V hereof 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 a
Certificate or facsimile thereof confirming such Oral
Instructions in such manner so that such Certificate or
facsimile thereof is received by the Custodian, whether by
hand delivery, telecopier or other similar devices, or
otherwise by the close of business on the same day that such
Oral instructions or Written Instructions are given to the
Custodian. The Fund agrees that the fact that such confirm-
ing Certificate or facsimile thereof is not received by the
Custodian shall in no way affect the validity or enforce-
ability 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 or Written
Instructions given to the Custodian hereunder concerning
such transactions provided such instructions reasonably
appear to have been received from an Authorized Person.
10. 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.
11. 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 and the Deposi-
tory and with such reports on its own systems of internal
accounting control as the Fund may reasonably request from
time to time.
12. The Fund agrees to indemnify the Custodian against
and save the Custodian harmless from all liability, claims,
losses and demands whatsoever, including attorney's fees,
-22-
howsoever arising or incurred because of or in connection
with the Custodian's payment of non-payment of a check
pursuant to paragraph 6 of Article VI as part of any check
redemption privilege program of the Fund, except for any
such liability, claim, loss and demand arising put of the
Custodian's own negligence or willful misconduct.
13. The Custodian shall have no duties or responsibi-
lities whatsoever except such duties and responsibilities as
are specifically set forth in this Agreement, and no cove-
nant or obligation shall be implied in this Agreement
against the Custodian.
ARTICLE X
TERMINATION
-----------
1. 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 ninety (90)days after the date of giving of such
notice. In the event such notice is given by the Fund, It
shall be accompanied by a copy of a resolution of the Board
of Trustees of the Fund, certified by the Secretary or any
Assistant Secretary, electing to terminate this Agreement
and designating a successor custodian or custodians, each of
which shall be a bank or trust company having not less than
$2,000,000 aggregate capital, surplus and undivided profits.
In the event such notice is given by the Custodian, the Fund
shall, on or before the termination date, deliver to the
Custodian a copy of a resolution of its Board of Trustees,
certified by the Secretary of any Assistant Secretary,
designating a successor custodian or custodians. In the
-23-
absence of such designation by the Fund, the Custodian may
designate a successor custodian which shall be a bank or
trust company having not less than $2,000,000 aggregate
capital, surplus, and undivided profits. Upon the date set
forth in such notice this Agreement shall terminate, 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 moneys then owned by
the Fund and held by it as Custodian, after deducting all
fees, expenses and other amounts for the payment of
reimbursement of which it shall then be entitled.
2. If a successor custodian is not designated by the
Fund or the Custodian in accordance with the preceding para-
graph, the Fund shall, upon the date specified in the notice
of termination of this Agreement and upon the delivery by
the Custodian to the Fund of all Securities (other than
Securities held in the Book-Entry System which cannot be
delivered to the Fund) and moneys 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 Systems which cannot be
delivered to the Fund to hold such Securities hereunder in
accordance with this Agreement.
ARTICLE XI
MISCELLANEOUS
-------------
1. Annexed hereto as Appendix A is a Certificate
signed by two of the present Officers of the Fund, setting
forth the names of the signatures of the present Authorized
-24-
Persons. The Fund agrees to furnish to the Custodian a new
Certificate in similar form in the event that any such
present Authorized Person ceases to be an Authorized Person
or in the event that other or additional Authorized Persons
are elected or appointed. Until such new Certificate shall
be received, the Custodian shall be fully protected in
acting under the provisions of this Agreement upon Oral
Instructions, Written Instructions or signatures of the
present Authorized Persons as set forth in the last deliver-
ed Certificate.
2. Annexed hereto as Appendix B is a Certificate
signed by two of the present Officers 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 Certificate in similar form in the event
that any such present Officer ceases to be an Officer of the
Fund, or in the event that other or additional Officers of
the Fund, are elected or appointed. Until such new Certifi-
cate shall be received, the Custodian shall be fully
protected in acting under the provisions of this. Agreement
upon the signatures of the Officers as set forth in the last
delivered Certificate.
3. Any notice or other instrument in writing, autho-
rized 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 00
Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as the Custodian may from time to time designate
in writing.
4. Any notice or other instrument in writing, author-
ized or required by this Agreement to be given to the Fund
shall be sufficiently given if addressed to the Fund and
-25-
mailed or delivered to it at its office 000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as the Fund may
from time to time designate in writing.
5. 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, and
authorized and approved by a resolution of the Board of
Trustees of the Fund.
6. This Agreement shall extend to and shall be bind-
ing 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 resolution
of its Board of Trustees. A merger or consolidation of the
Custodian will not be an assignment.
7. This Agreement shall be construed in accordance
with the laws of the State of New York.
8. 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.
9. The Declaration of Trust establishing Xxxxxxx
Xxxxx Retirement Series Trust, dated October 27, 1981, a
copy of which, together with all amendments thereto (the
"Declaration"), is on file in the office of the Secretary of
the Commonwealth of Massachusetts, provides that the name
"Xxxxxxx Xxxxx Retirement Series Trust" refers to the
Trustees under the Declaration collectively as Trustees, but
-26 -
not as individuals or personally; and no Trustee,
shareholder, officer, employee or agent or Xxxxxxx Xxxxx
Retirement Series Trust shall be held to any personal
liability, nor shall resort be had to their private property
for the satisfaction of any obligation or claim or otherise
in connection with the affairs of said Xxxxxxx Xxxxx
Retirement Series Trust, but the Trust Estate only shall be
liable.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective Officers,
thereunto duly authorized, as of the day and year first
above written.
XXXXXXX XXXXX RETIREMENT
SERIES TRUST
By:/s/ Xxxxxx Xxxxxx
Attest: /s/ Xxxxxx Xxxxxx
THE BANK OF NEW YORK
By: /s/
Attest:/s/
-27-
APPENDIX A
I, ,President and I, Xxxxxx Xxxxxx,
Secretary of Xxxxxxx Xxxxx Retirement Series Trust, a
Massachusetts business trust (the "Fund"), do hereby cer-
tify that:
The following individuals have been duly authorized by
the Board of Trustees of the Fund in conformity with the
Fund's Declaration of Trust and By-Laws to give Oral In-
structions and Written Instructions on behalf of the Fund,
and the signatures set forth opposite their respective
names are their true and correct signatures:
Name Signature
---- ---------
-------------------------- -----------------------------
APPENDIX B
I, ,President and I, Xxxxxx Xxxxxx,
Secretary of Xxxxxxx Xxxxx Retirement Series Trust, a
Massachusetts business trust (the "Fund"), do hereby cer-
tify that:
The following individuals serve in the following posi-
tions with the Fund and each individual has been duly elected
or appointed by the Board of Trustees of the Fund to each
such position and qualified therefor in conformity with the
Fund's Declaration of Trust and By-Laws, and the signatures
set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
---- -------- ---------
--------------------- -------------------- -------------------
