EXHIBIT NO. 99.8(a)
CUSTODIAN AGREEMENT
Between
MASSACHUSETTS FINANCIAL TOTAL RETURN TRUST
and
INVESTORS BANK & TRUST COMPANY
TABLE OF CONTENTS
PAGE NO.
1. Bank Appointed Custodian 1
2. Definitions 1
I 2.1 Authorized Person 1
2.2 Security 1
2.3 Portfolio security 1
2.4 Officers' Certificate 1
2.5 Book-Entry System 2
2.6 Depository 2
3. Proper Instructions 2
4. Separate Accounts 2
5. Certification as to Authorized Persons 2
6. Custody of Cash and Securities of the Fund 2
6.1 Cash 2
(a) Purchase of Securities 3
(b) Redemptions 3
(c) Distributions and Expenses of Fund 3
(d) Payment in Respect of Securities 3
(e) Repayment of Loans 3
(f) Repayment of Cash 3
(g) Foreign Exchange Transactions 3
(h) Commodities 4
(i) Other Authorized Payments 4
(j) Termination 4
6.2 Securities 4
(a) Book-Entry System 5
(b) Use of a Depository 6
(c) Use of Book-Entry System for Commercial Paper 7
(d) Use of Bond Immobilization Programs 7
(e) Eurodollar CDs 8
6.3 Options and Futures Transactions 8
(a) Puts and Calls Traded on Securities Exchanges, NASDAQ 8
or Over-the Counter
(b) Puts, Calls and Futures Traded on Commodities Exchanges 8
(c) Segregated Account 9
TABLE OF CONTENTS (Continued)
PAGE NO.
6.4 Segregated Account for "When Issued", "Forward Commitment" 9
and Reverse Repurchase Agreement Transactions
6.5 Interest Bearing Call or Time Deposits 10
7. Transfer of Securities 10
8. Redemptions 11
9. Merger, Dissolution, etc. of Fund 11
10. Actions of Bank Without Prior Authorization 12
11. Maintenance of Records; Fund Evaluation, Accounting Services 13
12. Concerning the Bank 14
12.1 Performance of Duties 14
12.2 Fees and Expenses of Bank 15
12.3 Advances by Bank 15
13. Termination 15
14. Notices 16
15. Amendments 17
16. Parties 17
17. Governing Law 17
18. Interpretive and Additional Provisions 17
19. Delegation of Certain Custodian Duties to Massachusetts 17
Financial Services Company ("MFS")
SIGNATURE PAGE 18
CUSTODIAN AGREEMENT
AGREEMENT made as of this 1st. day of October, 1991 between
Massachusetts Financial Total Return Trust established as a Massachusetts
Business Trust under the laws of the Commonwealth of Massachusetts (the "Fund"),
and INVESTORS BANK & TRUST COMPANY ("Bank").
The Fund, an open end management investment company, desires to place
and maintain all of its portfolio securities and cash in the custody of the
Bank. The Bank has at least the minimum qualifications required by Section
17(f)(1) of the Investment Company Act of 1940 to act as custodian of the
portfolio securities and cash of the Fund, and has indicated its willingness to
so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Bank appointed custodian. The Fund hereby appoints the Bank as
custodian of its portfolio securities and cash delivered to the Bank as
hereinafter described, and the Bank agrees to act as such upon the terms and
conditions hereinafter set forth.
2. Definitions. Whenever used herein, the terms listed below will have
the following meaning:
2.1 Authorized Person. Authorized Person will mean any of the
persons duly authorized to give Proper Instructions or otherwise act on behalf
of the Fund by appropriate resolution of the Board of Trustees of the Fund (the
"Board") or with respect to actions regarding transfers of securities and other
investment activities, those persons duly authorized by the investment adviser
of the Fund.
2.2 Security. The term security as used herein will have the
same meaning as when such term is used in the Securities Act of 1933 as amended,
including, without limitation, any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any profit
sharing agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest in oil,
gas, or other mineral rights, any put, call, straddle, option, or privilege on
any security, certificate of deposit, or group or index of securities (including
any interest therein or based on the value thereof), or any put, call, straddle,
option, or privilege entered into on a national securities exchange relating to
a foreign currency, or, in general, any interest or instrument commonly known as
a "security", or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guarantee of, or warrant or right to
subscribe to, or option contract to purchase or sell any of the foregoing and
futures, forward contracts and options thereon.
2.3 Portfolio Security. Portfolio security will mean any
security owned by the Fund.
2.4 Officers' Certificate. Officers' Certificate will mean
unless otherwise indicated, any request, direction, instruction, or
certification in writing signed by any Authorized Person or Persons of the Fund
as the Fund shall designate to the Bank in writing from time to time.
2.5 Book-Entry System. Book-Entry System shall mean the Federal
Reserve-Treasury Department Book Entry System for United States government,
instrumentality and agency securities operated by the Federal Reserve Banks, its
successor or successors and its nominee or nominees.
2.6 Depository. Depository shall mean The Depository Trust
Company ("DTC"), or Participants Trust Company ("PTC"), both of which are
clearing agencies registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934, and their respective
successor or successors and nominee or nominees. 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 Fund's Board.
3. Proper Instructions. Proper Instructions shall mean (i) instructions
regarding the purchase or sale of securities for the portfolio of the Fund, and
payments and deliveries in connection therewith, given by an Authorized Person
or Persons as designated by the Fund in writing from time to time, such
instructions to be given in such form and manner as the Bank and the Fund shall
agree upon from time to time, and (ii) instructions (which may be continuing
instructions) regarding other matters signed or initialed by such one or more
Authorized Persons. Oral instructions will be considered Proper Instructions if
the Bank reasonably believes them to have been given by an Authorized Person.
The Fund shall cause all oral instructions to be promptly confirmed in writing.
The Bank shall act upon and comply with any subsequent Proper Instruction which
modifies a prior instruction and the Bank shall make reasonable efforts to
detect any discrepancy between the original instruction and such confirmation
and to report such discrepancy to the Fund. Proper Instructions may include
communication effected directly between electro-mechanical or electronic devices
provided that the Fund and the Bank are satisfied that such procedures afford
adequate safeguards for the Fund's assets.
4. Separate Accounts. If the Fund has more than one series or
portfolio, the Bank will segregate the assets of the Fund into a Separate
Account for each such series or portfolio containing the assets of such series
or portfolio (and all investment earnings thereon), all as directed from time to
time by Proper Instructions.
5. Certification as to Authorized Persons. The Secretary or Assistant
Secretary of the Fund will at all times maintain on file with the Bank his
certification to the Bank, in such form as may be acceptable to the Bank, of (i)
the names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any change
in the information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Fund will sign a new or amended certification setting forth the
change and the new, additional or omitted names or signatures. The Bank will be
entitled to rely and act upon any Officers' Certificate given to it by the Fund.
6. Custody of Cash and Securities. As custodian for the Fund, the Bank
will keep safely all of the portfolio securities delivered to the Bank, and will
deposit to the account of the Fund all of the cash of the Fund delivered to the
Bank, as set forth below.
6.1 Cash. The Bank will open and maintain a separate account or
accounts in the name of the Fund or, if directed by the Fund, in the name of the
Bank, as custodian of the Fund, subject only to draft or order by the Bank
acting pursuant to the terms of this Agreement. The Bank will hold in such
account or accounts as custodian, subject to the provisions hereof, all cash
received by it, including borrowed funds, for the account of the Fund. Upon
receipt by the Bank of Proper Instructions (which may be continuing
instructions) or in the case of payments for redemptions and repurchases of
outstanding shares of beneficial interest of the Fund, notification from the
Fund's transfer agent as provided in Section 8, requesting such payment,
designating the payee or the account or accounts to which the Bank will release
funds for deposit, and stating that it is for a purpose permitted under the
terms of this Section 6.1, specifying the applicable subsection, or describing
such purpose with sufficient particularity to permit the Bank to ascertain the
applicable subsection, the Bank will make payments of cash held for the accounts
of the Fund, insofar as funds are available for that Purpose only as permitted
in (a)-(j) below.
(a) Purchase of Securities: Upon the purchase of
securities for the Fund, against contemporaneous receipt of such securities by
the Bank registered in the name of the Fund or in the name of, or properly
endorsed and in form for transfer to, the Bank, or a nominee of the Bank, or
receipt for the account of the Bank through use of (1) the Book-Entry System
pursuant to Section 6.2(a)(3) below, (2) Depository pursuant to 6.2(b) below, or
(3) Book-Entry Paper pursuant to Section 6.2(c) below, each such payment to be
made at the purchase price shown in the Proper Instructions received by the Bank
before such payment is made;
(b) Redemptions: In such amount as may be necessary for
the repurchase or redemption of shares of beneficial interest of the Fund
offered for repurchase or redemption in accordance with Section 8 of this
Agreement;
(c) Distributions and Expenses of Fund: For the payment
on the account of the Fund of dividends or other distributions to shareholders
as may from time to time be declared by the Board, interest, taxes, management
or supervisory fees, distribution fees, fees of the Bank for its services
hereunder and reimbursement of the expenses and liabilities of the Bank as
provided hereunder, fees of any transfer agent, fees for legal, accounting, and
auditing services, or other operating expenses of the Fund;
(d) Payment in Respect of Securities: For payments in
connection with the conversion, exchange or surrender of Portfolio securities or
securities subscribed to by the Fund held by or to be delivered to the Bank;
(e) Repayment of Loans: To repay loans of money made to
the Fund, but, in the case of final payment, only upon redelivery to the Bank of
any Portfolio securities pledged or hypothecated therefor and upon surrender of
documents evidencing the loan;
(f) Repayment of Cash: To repay the cash delivered to
the Fund for the purpose of collateralizing the obligation to return to the Fund
Portfolio securities borrowed from the Fund but only upon redelivery to the Bank
of such borrowed Portfolio securities;
(g) Foreign Exchange Transactions: For payments in
connection with foreign exchange contracts or options to purchase and sell
foreign currencies for spot and future delivery which may be entered into by the
Bank on behalf of the Fund upon the receipt of Proper Instructions, such Proper
Instructions to specify the currency broker or banking institution (which may be
the Bank, or any other sub custodian or agent hereunder, acting as principal)
with which the contract or option is made, and the Bank shall have no duty with
respect to the selection of such currency brokers or banking institutions with
which the Fund deals or for their failure to comply with the terms of any
contract or option;
(h) Commodities: Upon the purchase of commodities for
the Fund, against contemporaneous receipt of such commodities by the Bank
registered in the name of the Fund or in the name of, or properly endorsed and
in form for transfer to, the Bank, or a nominee of the Bank;
(i) Other Authorized Payments: For other authorized
transactions of the Fund, or other obligations of the Fund incurred for proper
Fund purposes including, without limitation, payments in connection with any
tender offer by the Fund; provided that before making any such payment the Bank
will also receive an Officer's Certificate naming the person or persons to whom
such payment is to be made, and either describing the transaction for which
payment is to be made and declaring it to be an authorized transaction of the
Fund, or specifying the amount of the obligation for which payment is to be
made, setting forth the purpose for which such obligation was incurred and
declaring such purpose to be a proper corporate purpose; and
(j) Termination: Upon the termination of this Agreement
as hereinafter set forth pursuant to Section 9 and Section 13 of this Agreement.
The Bank is hereby authorized to endorse for collection
and collect on behalf of and in the name of the Fund all checks, drafts, or
other negotiable or transferable instruments or other orders for the payment of
money received by it for the account of the Fund.
6.2 Securities. Except as otherwise provided herein, the Bank as
custodian, will receive and hold pursuant to the provisions hereof, in a
separate account or accounts and physically segregated at all times from those
of other persons, any and all Portfolio securities which may now or hereafter be
delivered to it by or for the account of the Fund. All such Portfolio securities
will be held or disposed of by the Bank for, and subject at all times to, the
instructions of the Fund pursuant to the terms of this Agreement. Subject to the
specific provisions herein relating to Portfolio securities that are not
physically held by the Bank, the Bank will register all Portfolio securities
(unless otherwise directed by Proper Instructions or an Officers' Certificate),
in the name of a registered nominee of the Bank as defined in the Internal
Revenue Code and any Regulations of the Treasury Department issued thereunder,
and will execute and deliver all such certificates in connection therewith as
may be required by such laws or Regulations or under the laws of any State. The
Bank will ensure that the specific securities physically held by it hereunder
will be at all times identifiable and will exercise prudent care and use its
best efforts to the end that the other securities held by it hereunder will be
at all times identifiable.
The Bank will use the same care with respect to the
safekeeping of portfolio securities and cash of the Fund held by it as it uses
in respect of its own similar property (which will at minimum be reasonable
care) but it need not maintain any special insurance for the benefit of the
Fund. The Bank shall provide to the Fund, at least annually and upon request,
information relating to its insurance coverage. The Bank will also immediately
notify the Fund in the event any of its insurance coverage is materially
changed, cancelled or not renewed.
The Fund will from time to time furnish to the Bank
appropriate instruments to enable it to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee, any securities
which it may hold for the account of the Fund and which may from time to time be
registered in the name of the Fund.
Neither the Bank nor any nominee of the Bank will vote
any of the portfolio securities held hereunder by or for the account of the
Fund, except in accordance with Proper Instructions or an Officers' Certificate.
The Bank will promptly execute and deliver, or cause to
be executed and delivered, to the Fund all notices, proxies and proxy soliciting
materials with respect to such securities, such proxies to be executed by the
registered holder of such securities (if registered otherwise than in the name
of the Fund), but without indicating the manner in which such proxies are to be
voted.
(a) Book-Entry System. Provided (i) the Bank has
received a certified copy of a resolution of the Board specifically approving
deposits of Fund assets in the Book-Entry System, and (ii) for each year
following such approval, the Board has reviewed and approved the arrangement and
has not delivered an Officer's Certificate to the Bank indicating that it has
withdrawn its approval:
1. The Bank may keep Securities of the Fund in the
Book-Entry System provided that such securities are represented in an account
("Account") of the Bank (or its agent) in such System which shall not include
any assets of the Bank (or such agent) other than assets held as a fiduciary,
custodian, or otherwise for customers.
2. The records of the Bank (and any such agent) with
respect to the Fund's participation in the Book-Entry System through the Bank
(or any such agent) will identify by book entry securities belonging to the Fund
which are included with other securities deposited in the Account and shall at
all times during the regular business hours of the Bank (or such agent) be open
for inspection by duly authorized officers, employees or agents of the Fund.
Where securities are transferred to the Fund's account, the Bank shall also, by
book entry or otherwise, identify as belonging to the Fund a quantity of
securities in fungible bulk of securities (i) registered in the name of the Bank
or its nominee, or (ii) shown on the Bank's account on the books of the Federal
Reserve Bank.
3. The Bank (or its agent) shall pay for securities
purchased for the account of the Fund or shall pay cash collateral against the
return of securities loaned by the Fund upon (i) receipt of advice from the
Book-Entry System that such Securities have been transferred to the Account, and
(ii) the making of an entry on the records of the Bank (or its agent) to reflect
such payment and transfer for the account of the Fund. The Bank shall send the
Fund a confirmation, as defined by Rule 17f-4 under the Investment Company Act
of 1940, of any transfers to or from the account of the Fund.
4. The Bank will promptly provide the Fund with any
report obtained by the Bank or its agent on the Book-Entry System's accounting
system, internal accounting control and procedures for safeguarding securities
deposited in the Book-Entry System. The Bank will provide the Fund and cause any
such agent to provide, at such times as the Fund may reasonably require, with
reports by independent public accountants on the accounting system, internal
accounting control and procedures for safeguarding securities, including
Securities deposited in the Book-Entry System, relating to the services provided
by the Bank or such agent under the Agreement.
5. Anything to the contrary in the Agreement
notwithstanding, the Bank shall be liable to the Fund for any loss or damage to
the Fund resulting from use of the Book-Entry System by reason of any
negligence, willful misfeasance or bad faith of the bank or any of its agents or
of any of its or their employees or from any negligent disregard by the Bank or
any such agent of its duty to enforce effectively such rights as it may have
against the Book-Entry System; at the election of the Fund, it shall be entitled
to be subrogated for the Bank in any claim against the Book-Entry System or any
other person which the Bank or its agent may have as a consequence of any such
loss or damage if and to the extent that the Fund has not been made whole for
any loss or damage.
(b) Use of a Depository. Provided (i) the Bank has
received a certified copy of a resolution of the Fund's Board specifically
approving deposits in DTC and PTC or other such Depository; (ii) the Bank
appoints any such depository its agent; and (iii) for each year following such
Board approval, the Board has reviewed and approved the arrangement and has not
delivered an Officer's Certificate to the Bank indicating that it has withdrawn
its approval:
1. The Bank may use a Depository to hold, receive,
exchange, release, lend, deliver and otherwise deal with the securities owned by
the Fund, including stock dividends, rights and other items of like nature, and
to receive and remit to the Bank on behalf of the Fund all income and other
payments thereon and to take all steps necessary and proper in connection with
the collection thereof, provided that such securities are held in an account of
the Bank (or its agent) in such Depository which shall not include any assets of
the Bank (or such agent) other than assets held as a fiduciary, custodian, or
otherwise for customers. The records of the Bank shall identify those securities
of the Trust held by the Depository.
2. Registration of the Fund's securities may be made
in the name of any nominee or nominees used by such Depository.
3. Payment for securities purchased and sold may be
made through the clearing medium employed by such Depository for transactions of
participants acting through it. Upon any purchase of securities for the account
of the Fund, payment will be made only upon delivery of the securities to or for
the account of the Fund and the Fund shall pay cash collateral against the
return of securities loaned by the Fund only upon delivery of the securities to
or for the account of the Fund; and upon any sale of securities for the account
of the Fund, delivery of the securities will be made only against payment
thereof or, in the event securities are loaned, delivery of securities will be
made only against receipt of the initial cash collateral to or for the account
of the Fund.
4. Anything to the contrary in the Agreement
notwithstanding, the Bank shall be liable to the Fund for any loss or damage to
the Fund resulting from use of a Depository by reason of any negligence, willful
misfeasance or bad faith of the Bank or any of its agents or of any of its or
their employees or from any negligent disregard by the Bank or any such agent of
its duty to enforce effectively such rights as it may have against a Depository.
At the election of the Fund, it shall be entitled to be subrogated for the Bank
in any claim against a Depository or any other person which the Bank or its
agent may have as a consequence of any such loss or damage if and to the extent
that the Fund has not been made whole for any loss or damage. In this
connection, with respect to the use of the Depository by the Bank, the Bank,
without cost to the Fund, shall ensure that: (i) the Depository obtains
replacement of any certificated security deposited with it in the event such
security is lost, destroyed, wrongfully taken or otherwise not available to be
returned to the Bank upon its request; (ii) any proxy materials received by
Depository with respect to securities of the Fund deposited with such Depository
are forwarded immediately to the Bank for prompt transmittal to the Fund; (iii)
such Depository immediately forwards to the Bank confirmation of any purchase or
sale of securities for the account of the Fund and of the appropriate book entry
made by such Depository to the Fund's account; (iv) such Depository prepares and
delivers to the Bank such records with respect to the performance of the Bank's
obligations and duties hereunder as may be necessary for the Fund to comply with
the record keeping requirements of Section 31(a) of the Act and Rule 31a
thereunder and such other rules and regulations relating to record keeping
requirements of the Fund as may be enacted from time to time; and (v) such
Depository delivers to the Bank and the Fund all internal accounting control
reports, whether or not audited by an independent public accountant, as well as
such other reports as the Fund may reasonably request in order to verify the
Fund's securities held by such Depository.
(c) Use of Book-Entry System for Commercial Paper.
Provided (i) the Bank has received a certified copy of a resolution of the Board
specifically approving participation in a system maintained by the Bank for the
holding of commercial paper in book-entry form ("Book Entry Paper") and (ii) for
each year following such approval the Board has reviewed and approved the
arrangements, upon receipt of Proper Instructions and upon receipt of
confirmation from an Issuer (as defined below) that the Fund has purchased such
Issuer's Book Entry Paper, the Bank shall issue and hold in book-entry form, on
behalf of the Fund, commercial paper issued by issuers with whom the Bank has
entered into a book-entry agreement (the "Issuers"). In maintaining its Book
Entry Paper System, the Bank agrees that:
1. The Bank will maintain all Book Entry Paper held
by the Fund in an account of the Bank that includes only assets held by it for
customers;
2. The records of the Bank with respect to the
Fund's purchase of Book Entry Paper through the Bank will identify, by book
entry, Commercial Paper belonging to the Fund which is included in the Book
Entry Paper System and shall at all times during the regular business hours of
the Bank be open for inspection by duly authorized officers, employees or agents
of the Fund.
3. (a) The Bank shall pay for Book Entry Paper
purchased for the account of the Fund upon contemporaneous (i) receipt of advice
from the Issuer that such sale of Book Entry Paper has been effected, and (ii)
the making of an entry on the records of the Bank to reflect such payment and
transfer for the account of the Fund.
(b) The Bank shall cancel such Book Entry Paper
obligation upon the maturity thereof upon contemporaneous (i) receipt of advice
that payment for such Book Entry Paper has been transferred to the Fund, and
(ii) the making of an entry on the records of the Bank to reflect such payment
for the account of the Fund .
4. The Bank shall transmit to the Fund a transaction
journal confirming each transaction in Book Entry Paper for the account of the
Fund on the next business day following the transaction;
5. The Bank will send to the Fund such reports on
its system of internal accounting control as the Fund may reasonably request
from time to time;
(d) Use of Bond Immobilization Programs. Provided (i)
the Bank has received a certified copy of a resolution of the Board specifically
approving the maintenance of portfolio securities in an immobilization program
operated by a bank which meets the requirements of Section 26(a)(1) of the
Investment Company Act of 1940, and (ii) for each year following such approval
the Board has reviewed and approved the arrangement and has not delivered an
officer's Certificate to the Bank indicating that it has withdrawn its approval,
the Bank shall enter into such immobilization program with such bank acting as a
sub custodian hereunder.
(e) Eurodollar CDs. Any Eurodollar CDs belonging to the
Fund may be physically held by the European branch of the U.S. banking
institution that is the issuer of such Eurodollar CD (a "European Branch"),
provided that such securities are identified on the books of the Bank as
belonging to the Fund and that the books of the Bank identify the European
branch holding such securities. Notwithstanding any other provision of this
Agreement to the contrary, except as stated in the first sentence of this
subparagraph (e), the Bank shall be under no other duty with respect to such
Eurodollar CDs belonging to the Fund, and shall have no liability to the Fund or
its shareholders with respect to the actions, inactions, whether negligent or
otherwise of such European Branch in connection with such Eurodollar CDs, except
for any loss or damage to the Fund resulting from the Bank's own negligence,
willful misfeasance or bad faith in the performance of its duties hereunder.
6.3 Options and Futures Transactions.
(a) Puts and Calls Traded on Securities Exchanges, NASDAQ or
Over-the-Counter.
1. The Bank shall take action as to put options
("puts") and call options ("calls") purchased or sold (written) by the Fund
regarding escrow or other arrangements in accordance with the provisions of any
agreement entered into upon receipt of Proper Instructions between the Bank, any
broker and, if necessary, the Fund. In the case of a call option written by the
Fund, the Bank will arrange for an escrow receipt to be issued when requested to
do so by the Fund.
2. Unless another agreement requires it to do so,
the Bank shall be under no duty or obligation to see that the Fund has deposited
or is maintaining adequate margin, if required, with any broker in connection
with any option, nor shall the Bank be under duty or obligation to present such
option to the broker for exercise unless it receives Proper Instructions from
the Fund. The Bank shall, however, comply with all Proper Instructions regarding
margin and exercise of options. The Bank shall have no responsibility for the
legality of any put or call purchased or sold on behalf of the Fund, the
propriety of any such purchase or sale, or the adequacy of any collateral
delivered to a broker in connection with an option or deposited to or withdrawn
from a Segregated Account as described in sub-paragraph c of this Section 6.3.
The Bank specifically, but not by way of limitation, shall not be under any duty
or obligation to: (i) periodically check or notify the Fund that the amount of
such collateral held by a broker or held in a Segregated Account as described in
sub-paragraph (c) of this Section 6.3 is sufficient to protect such broker of
the Fund against any loss; (ii) effect the return of any collateral delivered to
a broker, provided however, the Bank shall, upon expiration of an option, return
to the Fund any collateral held by the Bank relating to such option; or (iii)
advise the Fund that any option it holds, has or is about to expire. Such duties
or obligations shall be the sole responsibility of the Fund.
(b) Puts, Calls and Futures Traded on Commodities
Exchanges.
1. The Bank shall take action as to puts, calls and
futures contracts ("Futures") purchased or sold by the Fund in accordance with
the provisions of any agreement among the Fund, the bank and a Futures merchant
relating to compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market, or any similar organization or
organizations, (including any foreign organization) regarding account deposits
in connection with transactions by the Fund.
2. The responsibilities and liabilities of the Bank
as to Futures, puts and calls traded on commodities exchanges, any Futures
Commission Merchant account and the Segregated Account shall be limited as set
forth in sub-paragraph (a)(2) of this Section 6.3 as if such sub-paragraph
referred to Futures Commission Merchants rather than brokers, and Futures and
puts and calls thereon instead of options.
(c) Segregated Account.
The Bank shall upon receipt of Proper Instructions
establish and maintain a Segregated Account or Accounts for and on behalf of the
Fund, into which Account or Accounts may be transferred cash and/or securities
including securities maintained in an Account by the Bank pursuant to Section
6.2 hereof, (i) in accordance with the provisions of any agreement among the
Fund, the Bank and a broker or any Futures merchant, relating to compliance with
the rules of the Options Clearing Corporation and of any registered national
securities exchange or the Commodity Futures Trading Commission or any
registered contract market, or of any similar organization or organizations
(including any foreign organization) regarding escrow or other arrangements in
connection with transactions by the Fund, and (ii) for the purpose of
segregating cash or securities in connection with options purchased, or written
by the Fund or commodity futures or options thereon purchased or written by the
Fund, and (iii) for the purposes of compliance by the Fund with the procedures
required by Investment Company Act Release No. 10666, or any subsequent release
or releases or rules or regulations of the Securities and Exchange Commission
relating to the maintenance of Segregated Accounts by registered investment
companies , and (iv) for the purpose of segregating cash or securities for the
ICI Mutual Insurance Company letter of credit, and (v) for other proper
corporate purposes, but only, in the case of clause (v), upon receipt of an
Officers' Certificate, setting forth the purpose or purposes of such Segregated
Account and declaring such purposes to be proper corporate purposes.
6.4 Segregated Account for "When-Issued", "Forward Commitment"
and Reverse Repurchase Agreement Transactions. Notwithstanding any other
provisions hereof, the Bank will maintain a segregated account (the "Segregated
Account") in the name of the Fund (i) for the deposit of liquid assets, such as
cash, U.S. Government securities or other high grade obligations, having a value
(marked to the market on a daily basis by the Bank) at all times equal to not
less than the aggregate purchase price due on the settlement dates (or such
other amount as the Fund shall indicate) of all the Fund's then outstanding
forward commitment or "when-issued" agreements relating to the purchase of
portfolio securities and all the Fund's then outstanding commitments under
reverse repurchase agreements entered into with broker-dealer firms, and (ii)
for the deposit of any portfolio securities which the Fund has agreed to sell on
a forward commitment basis, all in accordance with Securities and Exchange
Commission Release No. IC-10666. No assets shall be deposited in the Segregated
Account except pursuant to Proper Instructions. Assets may be withdrawn from the
segregated account pursuant to Proper Instructions only (a) for sale or delivery
to meet the Fund's obligations under outstanding firm commitment or when-issued
agreements for the purchase of portfolio securities and under reverse repurchase
agreements, (b) for exchange for other liquid assets of equal or greater value
deposited in the Segregated Account, (c) to the extent that the Fund's
outstanding forward commitment or when-issued agreements for the purchase of
portfolio securities or reverse repurchase agreements are sold to other parties
or the Fund's obligations thereunder are met from assets of the Fund other than
those in the Segregated Account, or (d) for delivery upon settlement of a
forward commitment agreement for the sale of portfolio securities.
6.5 Interest Bearing Call or Time Deposits. The Bank shall, upon
receipt of Proper Instructions relating to the purchase by the Fund of interest
bearing fixed term and call deposits, transfer cash, by wire or otherwise, in
such amounts and to such bank or banks as shall be indicated in such Proper
Instructions. The Bank shall include in its records with respect to the assets
of the Fund appropriate notation as to the amount of each such deposit, the
banking institution with which such deposit is made (the "Deposit Bank"), and
shall retain such forms of advice or receipt evidencing the deposit, if any, as
may be forwarded to the Bank by the Deposit Bank. Such deposits shall be deemed
portfolio securities of the Fund and the responsibility of the Bank therefore
shall be the same as and no greater than the Bank's responsibility in respect of
other portfolio securities of the Fund.
7. Transfer of Securities. The Bank will transfer, exchange, deliver or
release Portfolio securities held by it hereunder, insofar as such securities
are available for such purpose, provided that before making any transfer,
exchange, delivery or release under this Section the Bank will receive Proper
Instructions requesting such transfer, exchange or delivery stating that it is
for a purpose permitted under the terms of this Section 7, specifying the
applicable subsection, or describing the purpose of the transaction with
sufficient particularity to permit the Bank to ascertain the applicable
subsection, only
7.1 Upon sales of Portfolio securities for the account of the
Fund, against contemporaneous receipt by the Bank of payment therefor in full,
each such payment to be in the amount of the sale price shown in the Proper
Instructions received by the Bank before such payment is made;
7.2 In exchange for or upon conversion into other securities
alone or other securities and cash pursuant to any plan of merger,
consolidation, reorganization, share split-up, change in par value,
recapitalization or readjustment or otherwise, upon exercise of subscription,
purchase or sale or other similar rights represented by such Portfolio
securities, or for the purpose of tendering shares in the event of a tender
offer therefore, provided however that in the event of an offer of exchange,
tender offer, or other exercise of rights requiring the physical tender or
delivery of Portfolio securities, the Bank shall have no liability for failure
to so tender in a timely matter unless such Proper Instructions are received by
the Bank at least two business days prior to the date required for tender, and
unless the Bank (or its agent or sub custodian hereunder) has actual possession
of such security at least two business days prior to the date of tender;
7.3 Upon conversion of Portfolio securities pursuant to their
terms into other securities;
7.4 For the purpose of redeeming in kind shares of common stock
of the Fund upon authorization from the Fund;
7.5 In the case of option contracts owned by the Fund, for
presentation to the endorsing broker;
7.6 When such Portfolio securities are called, redeemed or
retired or otherwise become payable;
7.7 For the purpose of effectuating the pledge of portfolio
securities held by the Bank pursuant to this Agreement in order to collateralize
loans made to the Fund by any bank, including the Bank; provided, however, that
such Portfolio securities will be released only upon payment to the Bank for the
account of the Fund of the moneys borrowed, except that in cases where
additional collateral is required to secure a borrowing already made, and such
fact is made to appear in the Proper Instructions, further portfolio securities
may be released for that purpose without any such payment;
7.8 For the purpose of releasing certificates representing
Portfolio securities of the Fund, against contemporaneous receipt by the Bank of
the fair value of such security, as set forth in Proper Instructions received by
the bank before such payment is made;
7.9 For the purpose of delivering securities lent by the Fund to
a bank or broker dealer, but only against receipt in accordance with street
delivery custom except as otherwise provided in Subsections 6.2(a) and (b)
hereof, of adequate collateral as agreed upon from time to time by the Fund and
the Bank, and upon receipt of payment in connection with any repurchase
agreement relating to such securities entered into by the Fund;
7.10 For other authorized transactions of the Fund or for other
proper corporate purposes; provided that before making such transfer, the Bank
will also receive an Officers' Certificate specifying the portfolio securities
to be delivered, setting forth the transaction in or purpose for which such
delivery is to be made, declaring such transaction to be an authorized
transaction of the Fund or such purpose to be a proper corporate purpose, and
naming the person or persons to whom delivery of such securities shall be made;
and
7.11 Upon termination of this Agreement as hereinafter set forth
pursuant to Section 9 and Section 13 of this Agreement.
7.12 For delivery in accordance with the provisions of any
agreement among the Fund, the Bank and a broker-dealer relating to compliance
with the rules of the Options Clearing Corporation and of any registered
national securities exchange, or of any similar organization or organizations
(including foreign organizations), regarding escrow or other arrangements in
connection with transactions by the Fund;
7.13 For delivery in accordance with the provisions of any
agreement among the Fund, the Bank, and a Futures commission merchant relating
to compliance with the rules of the Commodity Futures Trading Commissions or any
similar organization or organizations (including foreign organizations),
regarding account deposits in connection with transactions by the Fund.
As to any deliveries made by the Bank pursuant to subsections
7.1, 7.2, 7.3, 7.5, 7.6, 7.7, 7.8 and 7.9, securities or cash receivable in
exchange therefor shall be delivered to the Bank.
8. Redemptions. In the case of payment of assets of the Fund held by
the Bank in connection with redemptions and repurchases by the Fund of its
outstanding shares of beneficial interest, the Bank will rely on written
notification by the Fund's transfer agent of receipt of a request for redemption
and certificates, if issued, in proper form for redemption before such payment
is made. Payment shall be made in accordance with the Declaration of Trust of
the Fund, from assets available for said purpose.
9. Merger. Dissolution. etc. of Fund. In the case of the following
transactions, not in the ordinary course of business, namely, the merger of the
Fund into or the consolidation of the Fund with another investment company, the
sale by the Fund of all, or substantially all of its assets to another
investment company, or the liquidation or dissolution of the Fund and
distribution of its assets, the Bank will deliver the Portfolio securities held
by it under this Agreement and disburse cash only upon the order of the Fund set
forth in an officers' Certificate, accompanied by a certified copy of a
resolution of the Fund's Board authorizing any of the foregoing transactions.
Upon completion of such delivery and disbursement and the payment of the
preapproved fees, disbursements and expenses of the Bank, this Agreement will
terminate.
10. Actions of Bank Without Prior Authorization. Notwithstanding
anything herein to the contrary, unless and until the Bank receives an Officers'
Certificate to the contrary, it will without prior authorization or instruction
of the Fund or the transfer agent:
10.1 Receive and hold for the account of the Fund hereunder and
deposit in the account or accounts referred to in Section 6 hereof, all income,
dividends, interest and other payments or distribution of cash with respect to
the Portfolio securities held thereunder;
10.2 Present for payment all coupons and other income items held
by it for the account of the Fund which call for payment upon presentation and
hold the cash received by it upon such payment for the account of the Fund
account or accounts referred to in Section 6 hereof:
10.3 Receive and hold for the account of the Fund hereunder and
deposit in the account or accounts referred to in Section 6 hereof all
securities received as a distribution on Portfolio securities as a result of a
stock dividend, share split-up, reorganization, recapitalization, merger,
consolidation, readjustment, distribution of rights and similar securities
issued with respect to any Portfolio securities held by it hereunder.
10.4 Execute as agent on behalf of the Fund all necessary
ownership and other certificates and affidavits required by the Internal Revenue
Code or the regulations of the Treasury Department issued thereunder, or by the
laws of any state, now or hereafter in effect, inserting the Fund's name on such
certificates as the owner of the securities covered thereby, to the extent it
may lawfully do so and as may be required to obtain payment in respect thereof.
The Bank will execute and deliver such certificates in connection with Portfolio
securities delivered to it or by it under this Agreement as may be required
under the provisions of the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, or under the laws of any State;
10.5 Present for payment all portfolio securities which are
called, redeemed, retired or otherwise become payable, and hold cash received by
it upon payment for the account of the Fund in the account or accounts referred
to in Section 6 hereof; and
10.6 Exchange interim receipts or temporary securities for
definitive securities.
The Bank shall collect any funds which are collectible arising
from Portfolio securities, including dividends, interest and other income, and
shall transmit promptly to the Fund all written information affecting such
securities including, without limitation, any call for redemption, offer of
exchange, pendency of maturity, notices regarding options and futures contracts,
right of subscription, reorganization or other proceedings.
If Portfolio securities upon which such income is payable are in
default or payment is refused after due demand or presentation, the Bank will
notify the Fund in writing of any default or refusal to pay within two business
days from the day on which it receives knowledge of such default or refusal. In
addition, the Bank will send the Fund a written report once each month showing
any income on any Portfolio security held by it which is more than ten days
overdue on the date of such report.
11. Maintenance of Records: Fund Evaluation: Accounting Services. The
Bank will maintain records with respect to transactions for which the Bank is
responsible pursuant to the terms and conditions of this Agreement, and in
compliance with the applicable rules and regulations of the Investment Company
Act of 1940 as amended, as well as applicable federal and state tax laws and all
other laws and regulations which may be applicable, and will furnish the Fund
daily with a statement of assets and liabilities and a portfolio of investments
of the Fund as well as such other calculations and reports as the Bank and Fund
may agree from time to time. The Bank will furnish to the Fund at the end of
every month, and at the close of each quarter of the Fund's fiscal year as well
as at such other times as the Fund may request, a list of the Portfolio
securities and the aggregate amount of cash held by it for the Fund. The books
and records of the Bank pertaining to its actions under this Agreement and
reports by the Bank or its independent accountants concerning its accounting
system, procedures for safeguarding the Fund's assets and internal accounting
controls, which shall be of sufficient scope and in sufficient detail as may
reasonably be required by the Fund to provide reasonable assurance that any
material inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, shall so state, and will be open to inspection and audit
at reasonable times by officers of or auditors employed by the Fund as well as
any other person authorized by the Fund by Proper Instructions. The books and
records relating to the Fund will be preserved by the Bank in the manner and in
accordance with the applicable rules and regulations under the Investment
Company Act of 1940 and shall be the property of the Fund.
As custodian the Bank shall have and perform the following
powers and duties:
11.1 To keep the books of account and render statements or
copies from time to time as reasonably requested by the Treasurer or any
executive officer of the Fund.
11.2 To compute and, unless otherwise directed by the Board,
determine as of the close of business on the New York Stock Exchange on each day
on which said Exchange is open for trading or as of such other hours, if any, as
may be authorized by said Board the net asset value and the public offering
price of a share of beneficial interest of the Fund, such determination to be
made in accordance with the provisions of the Declaration of Trust of the Fund
and Prospectus and Statement of Additional Information relating to the Fund, as
they may from time to time be amended, and any applicable resolutions of the
Board at the time in force and applicable; and promptly to notify the Fund and
the National Association of Securities Dealers ("NASD") or such other persons as
the Fund may request of the results of such computation and determination. In
computing the net asset value hereunder, the Bank may rely in good faith upon
information furnished in writing to it by any Authorized Person in respect of
(i) the manner of accrual of the liabilities of the Fund and in respect of
liabilities of the Fund not appearing on its books of account kept by the Bank,
(ii) reserves, if any, authorized by the Board or that no such reserves have
been authorized, (iii) the source of the quotations to be used in computing the
net asset value, (iv) the value to be assigned to any security for which no
price quotations are available, and (v) the method of computation of the public
offering price on the basis of the net asset value of the shares, and the Bank
shall not be responsible for any loss occasioned by such reliance or for any
good faith reliance on any quotations received from a source pursuant to (iii)
above.
11.3 To assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
12. Concerning the Bank.
12.1 Performance of Duties. In performing its duties hereunder
and any other duties listed on any Schedule hereto, if any, the Bank will be
entitled to receive and act upon the advice of independent counsel of its own
selection, which may be counsel for the Fund, and will be without liability for
any action taken or thing done or omitted to be done in accordance with this
Agreement in good faith in conformity with such advice, if such counsel and such
advice are approved by the Fund, provided however such approval shall not be
unreasonably withheld. In the performance of its duties hereunder, so long as it
exercises reasonable care, the Bank will be protected and not be liable, and
will be indemnified and saved harmless for any action taken or omitted to be
taken by it in good faith reliance upon the terms of this Agreement, any
Officers' Certificate, Proper Instructions, resolution of the Board, telegram,
notice, request, certificate or other instrument reasonably believed by the Bank
to be genuine and to have been sent by an Authorized Person and for any other
loss to the Fund except in the case of the Bank's negligence, willful
misfeasance or misconduct or bad faith in the performance of its duties or
negligent disregard of its obligations and duties hereunder.
The Bank may employ agents in the performance of its duties
hereunder and the Bank shall be responsible for the acts and omissions of such
agents as if performed by the Bank hereunder. The Bank may employ sub custodians
upon receipt of Proper Instructions indicating that the Board has so approved
the appointment, provided that any such subcustodian meets at least the minimum
qualifications required by Section 17(f)(1) of the Investment Company Act of
1940 to act as a custodian of the Fund's assets. In order to comply with Rule
17f-5, (and 17f-4, if applicable) of the Investment Company Act of 1940, the
contract between the Bank and any foreign subcustodian relating to securities of
the Fund shall be subject to approval of the Fund. The appointment of any
subcustodian by the Bank pursuant to this Agreement shall not relieve the Bank
of its responsibilities and liabilities under this Agreement, and the Bank shall
be liable to the Fund, to the extent of the Fund's damages, resulting from the
failure of any subcustodian to exercise reasonable care and to act in good faith
without negligence, provided however, the Bank shall not be liable for any loss
resulting from, or caused by nationalization, expropriation, currency
restrictions, acts of war or terrorism, insurrection, revolution, nuclear
fusion, fission or radiation, acts of God or other similar events or acts not
due to the failure of the Bank or any subcustodians to exercise reasonable care
in the performance of their duties. Notwithstanding the foregoing, in connection
with the Bank's liability for the performance of The Chase Manhattan Bank, N. A.
("Chase") as a sub custodian of the Fund pursuant to an agreement by and between
Chase and the Bank, which form of agreement is attached hereto (the "Chase
Agreement"), and any subcustodian of the Fund appointed under the Chase
Agreement with the approval of the Board, the "Fund's damages" for the purpose
of the preceding sentence will be determined based on the market value of the
property which is the subject of the loss at the date of discovery of such loss
and without reference to any special conditions or circumstances.
The Bank will be under no duty or obligation to inquire into and
will not be liable for:
(a) the validity of the issue of any Portfolio
securities purchased by or for the Fund, the legality of the purchases thereof
or the propriety of the price incurred therefor;
(b) the legality of any sale of any portfolio securities
by or for the Fund or the propriety of the amount for which the same are sold;
(c) the legality of an issue or sale of any shares of
beneficial interest of the Fund or the sufficiency of the amount to be received
therefor;
(d) the legality of the repurchase of any shares of
beneficial interest of the Fund or the propriety of the amount to be paid
therefor;
(e) the legality of the declaration of any dividend by
the Fund or the legality of the distribution of any Portfolio securities as
payment in kind of such dividend; or
(f) any property or moneys of the Fund already delivered
or paid by the Bank pursuant to the terms hereof.
Moreover, the Bank will not be under any duty or obligation to
ascertain whether any Portfolio securities at any time delivered to or held by
it for the account of the Fund are such as may properly be held by the Fund
under the provisions of its Declaration of Trust or By-Laws, any federal or
state statutes or any rule or regulation of any governmental agency.
12.2 Fees and Expenses of Bank. The Fund will pay or reimburse
the Bank from time to time for any transfer taxes payable upon transfer of
Portfolio securities made hereunder, and for all necessary proper disbursements,
expenses and charges made or incurred by the Bank in the performance of this
Agreement (including any duties listed on any Schedule hereto, if any) including
any indemnities for any loss, liabilities or expense to the Bank as specifically
provided above. For the services rendered by the Bank hereunder, the Fund will
pay to the Bank such compensation or fees at such rate and at such times as
shall be agreed upon in writing by the parties from time to time. The Bank will
also be entitled to reimbursement by the Fund for all preapproved expenses
incurred in conjunction with termination of this Agreement by the Fund.
12.3 Advances by Bank. The Bank may, in its sole discretion,
advance funds on behalf of the Fund to make any payment permitted by this
Agreement upon receipt of any proper authorization required by this Agreement
for such payments by the Fund. Should such a payment or payments, with advanced
funds, result in an overdraft (due to insufficiencies of the Fund's account with
the Bank, or for any other reason) this Agreement deems any such or related
indebtedness, a loan made by the Bank to the Fund payable on demand and bearing
interest at the rate set forth in writing by the Bank concurrently herewith (as
amended from time to time) unless the Fund shall provide the Bank with agreed
upon compensating balances. The Fund agrees that the Bank shall have a
continuing lien and security interest on the assets of the Fund to the extent of
any overdraft, provided that in no event shall the amount of such lien exceed
the lesser of (i) the amount of such overdraft or (ii) 10% of the Fund's gross
assets on the date of such overdraft, and provided further that to the extent
consistent with the foregoing, the Bank will comply with any Proper Instructions
indicating which Portfolio securities and/or which account of the Fund shall be
subject to such lien. If such overdraft is not repaid within a reasonable period
of time, the Bank shall have the right to exercise any rights it may have as a
lienholder or secured party.
13. Termination
13.1 This Agreement may be termlnate at any time without penalty
upon sixty days written notice delivered by either party to the other by means
of registered mail, and upon the expiration of such sixty days this Agreement
will terminate; provided, however, that the effective date of such termination
may be postponed to a date not more than ninety days from the date of delivery
of such notice (i) by the Bank in order to prepare for the transfer by the Bank
of all of the assets of the Fund held hereunder, and (ii) by the Fund in order
to give the Fund an opportunity to make suitable arrangements for a successor
custodian. The Fund may immediately terminate this Agreement: (i) in the event
of the appointment of a conservator or receiver for the Bank or upon the
happening of a like event; (ii) if the Bank shall make a general assignment for
the benefit of creditors; admit in writing its inability to pay its debts as
they become due; file a petition in bankruptcy or a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future bankruptcy, reorganization,
insolvency or similar statute, law or regulation or seek the appointment of any
trustee, receiver, custodian or liquidator of the Bank or of all or
substantially all of its properties; (iii) if a proceeding is commenced against
the Bank seeking relief or an appointment of a type described in paragraph
13.1(ii) above and such proceeding is not dismissed within 30 days after the
commencement thereof; (iv) if the Bank's insurance is materially adversely
changed. At any time after the termination of this Agreement, the Fund will, at
its request, have access to the records of the Bank relating to the performance
of its duties as custodian.
13.2 In the event of the termination of this Agreement, the Bank
will immediately upon receipt or transmittal, as the case may be, of notice of
termination, commence and prosecute diligently to completion the transfer of all
cash and the delivery of all Portfolio securities duly endorsed and all records
maintained under Section 11 to the successor custodian when appointed by the
Fund. The obligation of the Bank to deliver and transfer over the assets of the
Fund held by it directly to such successor custodian will commence as soon as
such successor is appointed and will continue until completed as aforesaid. If
the Fund does not select a successor custodian within ninety (90) days from the
date of delivery of notice of termination the Bank may, subject to the
provisions of subsection 13.3 of this Section 13, deliver the Portfolio
securities and cash of the Fund held by the Bank to a bank or trust company of
its own selection which meets the requirements of Section 17(f)(1) of the
Investment Company Act of 1940 and has a reported capital, surplus and undivided
profits aggregating not less than $25,000,000, to be held as the property of the
Fund under terms similar to those on which they were held by the Bank, whereupon
such bank or trust company so selected by the Bank will become the successor
custodian of such assets of the Fund with the same effect as though selected by
the Board.
13.3 Prior to the expiration of ninety (90) days after notice of
termination has been given, the Fund may furnish the Bank with an order of the
Fund advising that a successor custodian cannot be found willing and able to act
upon reasonable and customary terms and that there has been submitted to the
Board of the Fund the question of whether the Fund will be liquidated or will
function without a custodian for the assets of the Fund held by the Bank. In
that event the Bank will deliver the Portfolio securities and cash of the Fund
held by it, subject as aforesaid, in accordance with one of such alternatives
which may be approved by the requisite vote of the Board, upon receipt by the
Bank of a copy such vote certified by the Fund's Secretary or Assistant
Secretary.
14. Notices. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to the Fund to:
Treasurer
Massachusetts Financial Total Return Trust
c/o Massachusetts Financial Services Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
Financial Product Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or at such other place as such party may from time to time
designate in writing.
15. Amendments. This Agreement may not be altered or amended, except by
an instrument in writing, executed by both parties, and in the case of the Fund,
such alteration or amendment will be authorized and approved by its Board.
16. Parties. This Agreement will be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Fund
without the prior written consent of the Bank or by the Bank without the prior
written consent of the Fund, authorized and approved by its Board; and provided
further that termination proceedings pursuant to Section 13 hereof will not be
deemed to be an assignment within the meaning of this provision.
17. Governing Law. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts.
18. Interpretive and Additional Provisions. In connection with the
operation of this Agreement, the Bank and the Fund may from time to time agree
on such provisions interpretive of or in addition to the provisions of this
Agreement as may in their joint opinion be consistent with the general tenor of
this Agreement. Any such interpretive or additional provisions shall be in
writing signed by both parties and shall be annexed hereto and shall be binding
upon the parties hereto as if incorporated into this Agreement, provided
however, no such interpretive or additional provisions shall be deemed to be an
alteration or amendment of this Agreement.
19. Delegation of Certain Duties to Massachusetts Financial Services
Company ("MFS"). The Bank, with the prior written consent of MFS, may delegate
to MFS the performance of any or all of the duties it has agreed to perform for
the Fund in a separate written agreement relating to (i) accounting for
investments in currency and for financial instruments (including, without
limitation, options contracts, futures contracts, options on futures contracts,
options on foreign currency and forward foreign currency exchange contracts) and
(ii) federal and state regulatory compliance. The Bank shall compensate MFS for
the performance of such duties at such fee or fees as MFS shall determine to be
equal to MFS' cost for performing such duties (the "MFS Fees") Following its
payment of MFS Fees to MFS, the Bank shall recover the amount of the MFS Fees
from the Fund on such terms as the Bank and the Fund shall agree. MFS assumes
responsibility for all duties delegated to it by the Bank pursuant to this
Section 19, and the Bank may rely on MFS for the accuracy and correctness of the
accounting information provided by MFS to the Bank pursuant to this Section 19.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate and their respective corporate seals to be affixed hereto
as of the date first above written by their respective officers thereunto duly
authorized.
MASSACHUSETTS FINANCIAL
TOTAL RETURN TRUST
By: /s/ ▇. ▇▇▇▇▇▇ LONDON
----------------------
▇. ▇▇▇▇▇▇ London
ATTEST:
/s/ ILLEGIBLE
-------------------------
(Illegible)
INVESTORS BANK & TRUST
COMPANY
By: /s/ ILLEGIBLE
----------------------
(Illegible)
ATTEST:
/s/ ILLEGIBLE
-------------------------
(Illegible)
The officer of the Fund signing this Agreement is executing this Agreement not
individually but in his capacity as an officer of the Fund. The obligations of
the Fund under this Agreement are not binding upon any of the trustees,
officers, employees, agents or shareholders of the Fund individually, but bind
only the trust estate of the Fund.