Exhibit 8(a)
CUSTODY AGREEMENT
AGREEMENT dated as of November 18, 1996, among each of the mutual funds
listed on Appendix A hereto (each referred to herein as the "Fund", each of
which is acting on its own behalf and not on behalf of any other Fund), each
Fund being a business trust or series thereof organized under the laws of the
Commonwealth of Massachusetts, having its principal office and place of business
at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
BOSTON SAFE DEPOSIT AND TRUST COMPANY (the "Custodian"), a Massachusetts trust
company with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set
forth, the Fund and the Custodian agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Affiliated Person" shall have the meaning of the term within
Section 2(a)3 of the 1940 Act.
(b) "Authorized Person" shall be deemed to include the Chairman of the
Board of Trustees, the President, and any Vice President, the Secretary,
the Treasurer or any other person, whether or not any such person is an
officer or employee of the Fund, duly authorized by the Board of
Trustees of the Fund to give Oral Instructions and Written Instructions
on behalf of the Fund and listed in the certification annexed hereto as
Appendix B or such other certification as may be received by the
Custodian from time to time.
(c) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency Securities, its
successor or successors and its nominee or nominees.
(d) "Business Day" shall mean any day on which the Fund, the Custodian,
the Book-Entry System and appropriate clearing corporation(s) are open
for business.
(e) "Certificate" shall mean any notice, instruction or other instrument
in writing, authorized or required by this Agreement to be given to the
Custodian, which is actually received by the Custodian and signed on
behalf of the Fund by any two Authorized Persons or any two officers
thereof.
(f) "Master Trust Agreement" shall mean the Declaration of Trust of the
Fund dated September 13, 1996 as the same may be amended from time to
time.
(g) "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission
under Section 17(a) of the Securities Exchange Act of 1934, as amended,
its successor or successors and its nominee or nominees, in which the
Custodian is hereby specifically authorized to make deposits. The term
"Depository" shall further mean and include any other person to be named
in a Certificate authorized to act as a depository under the 1940 Act,
its successor or successors and its nominee or nominees.
(h) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and
principal by the government of the United States or agencies or
instrumentalities thereof ("U.S. government securities"), commercial
paper, bank certificates of deposit, bankers' acceptances and short-term
corporate obligations, where the purchase or sale of such securities
normally requires settlement in federal funds on the same day as such
purchase or sale, and repurchase and reverse repurchase agreements with
respect to any of the foregoing types of securities.
(i) "Oral Instructions" shall mean verbal instructions actually received
by the Custodian from a person reasonably believed by the Custodian to
be an Authorized Person.
(j) "Prospectus" shall mean the Fund's current prospectus and statement
of additional information relating to the registration of the Fund's
Shares under the Securities Act of 1933, as amended.
(k) "Shares" refers to shares of beneficial interest, $.001 par value
per share of the Fund.
(l) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, other
securities, derivative instruments, commodities interests and other
investments from time to time owned by the Fund.
(m) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent
functions for the Fund.
(n) "Written Instructions" shall mean a written communication actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person by any system, including, without
limitation, electronic transmissions, facsimile and telex.
(o) The "1940 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
2. Appointment of Custodian.
(a) The Fund hereby constitutes and appoints the Custodian as custodian
of all the Securities and monies at the time owned by or in the
possession of the Fund during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
3. Compensation.
(a) The Custodian shall be entitled to receive, and the Fund agrees to
pay to the Custodian, such compensation as may be agreed upon from time
to time between the Custodian and the Fund. The Custodian may charge
against any monies held on behalf of the Fund pursuant to this Agreement
such compensation and any expenses incurred by the Custodian in the
performance of its duties pursuant to this Agreement. The Custodian
shall also be entitled to charge against any money held on behalf of the
Fund pursuant to this Agreement the amount of any loss, damage,
liability or expense incurred with respect to the Fund, including
counsel fees, for which it shall be entitled to reimbursement under the
provisions of this Agreement. The expenses which the Custodian may
charge against such account include, but are not limited to, the
expenses of sub-custodians and foreign branches of the Custodian
incurred in settling transactions outside of Boston, Massachusetts or
New York City, New York involving the purchase and sale of Securities.
(b) The Fund will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in the Fee
Schedule annexed hereto as Schedule A and incorporated herein. Such Fee
Schedule does not include out-of-pocket disbursements of the Custodian
for which the Custodian shall be entitled to ▇▇▇▇ separately.
Out-of-pocket disbursements shall include, but shall not be limited to,
the items specified in the Schedule of Out-of-Pocket charges annexed
hereto as Schedule B and incorporated herein, which schedule may be
modified by the Custodian upon not less than thirty days prior written
notice to the Fund.
(c) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule A of this Agreement a revised Fee
Schedule, dated and signed by an Authorized Person or authorized
representative of each party hereto.
(d) The Custodian will ▇▇▇▇ the Fund as soon as practicable after the
end of each calendar month, and said ▇▇▇▇▇▇▇▇ will be detailed in
accordance with Schedule A, as amended from time to time. The Fund will
promptly pay to the Custodian the amount of such billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets.
The Fund will deliver or cause to be delivered to the Custodian all
Securities and monies owned by it at any time during the period of this
Agreement. The Custodian will not be responsible for such Securities and
monies until actually received by it. The Fund shall instruct the
Custodian from time to time in its sole discretion, by means of Written
Instructions, or, in connection with the purchase or sale of Money
Market Securities, by means of Oral Instructions confirmed in writing in
accordance with Section 11(h) hereof or Written Instructions, as to the
manner in which and in what amounts Securities and monies are to be
deposited on behalf of the Fund in the Book-Entry System or the
Depository; provided, however, that prior to the deposit of Securities
of the Fund in the Book-Entry System or the Depository, including a
deposit in connection with the settlement of a purchase or sale, the
Custodian shall have received a Certificate specifically approving such
deposits by the Custodian in the Book-Entry System or the Depository.
Securities and monies of the Fund deposited in the Book-Entry System or
the Depository will be represented in accounts which include only assets
held by the Custodian for customers, including but not limited to
accounts for which the Custodian acts in a fiduciary or representative
capacity.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for the Fund and shall credit to the
separate account all monies received by it for the account of such Fund
and shall disburse the same only:
1. In payment for Securities purchased for the Fund, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with
respect to the Shares, as provided in
Section 7 hereof;
3. In payment of original issue or other taxes with
respect to the Shares, as provided in
Section 8 hereof;
4. In payment for Shares which have been redeemed
by the Fund, as provided in Section 8
hereof;
5. Pursuant to Written Instructions setting forth the name and
address of the person to whom the payment is to be made, the
amount to be paid and the purpose for which payment is to be
made, provided that in the event of disbursements pursuant to
this sub-section 4(b)(5), the Fund shall indemnify and hold the
Custodian harmless from any claims or losses arising out of such
disbursements in reliance on such Written Instructions which it,
in good faith, believes to be received from duly Authorized
Persons; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as
provided in Sections 3 and 11(i).
(c) Confirmation and Statements. Promptly after the close of business on
each day, the Custodian shall furnish the Fund with confirmations and a
summary of all transfers to or from the account of the Fund during said
day. Where securities purchased by the Fund are in a fungible bulk of
securities registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of the Depository or the
Book-Entry System, the Custodian shall by book entry or otherwise
identify the quantity of those securities belonging to the Fund. At
least monthly, the Custodian shall furnish the Fund with a detailed
statement of the Securities and monies held for the Fund under this
Agreement.
(d) Registration of Securities and Physical Separation. All Securities
held for the Fund which are issued or issuable only in bearer form,
except such Securities as are held in the Book-Entry System, shall be
held by the Custodian in that form; all other Securities held for the
Fund may be registered in the name of the Fund, in the name of the
Custodian, in the name of any duly appointed registered nominee of the
Custodian as the Custodian may from time to time determine, or in the
name of the Book-Entry System or the Depository or their successor or
successors, or their nominee or nominees. The Fund reserves the right to
instruct the Custodian as to the method of registration and safekeeping
of the Securities. The Fund agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold or deliver in
proper form for transfer, or to register in the name of its registered
nominee or in the name of the Book-Entry System or the Depository, any
Securities which it may hold for the account of the Fund and which may
from time to time be registered in the name of the Fund. The Custodian
shall hold all such Securities specifically allocated to the Fund which
are not held in the Book-Entry System or the Depository in a separate
account for the Fund in the name of the Fund physically segregated at
all times from those of any other person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction the
Custodian will establish segregated accounts on behalf of the Fund to
hold liquid or other assets as it shall be directed by a Written
Instruction and shall increase or decrease the assets in such segregated
accounts only as it shall be directed by subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities. Unless
otherwise instructed to the contrary by a Written Instruction, the
Custodian by itself, or through the use of the Book-Entry System or the
Depository with respect to Securities therein deposited, shall with
respect to all Securities held for the Fund in accordance with this
Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Fund for
monitoring or ascertaining any call, redemption or retirement
dates with respect to put bonds which are owned by the Fund and
held by the Custodian or its nominees. Nor shall the Custodian
have any responsibility or liability to the Fund for any loss by
the Fund for any missed payments or other defaults resulting
therefrom; unless the Custodian received timely notification
from the Fund specifying the time, place and manner for the
presentment of any such put bond owned by the Fund and held by
the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Fund for the
accuracy or completeness of any notification the Custodian may
furnish to the Fund with respect to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter in
effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the
account of the Fund all rights and similar Securities issued
with respect to any Securities held by the Custodian hereunder
for the Fund.
(g) Delivery of Securities and Evidence of Authority. Upon receipt of a
Written Instruction and not otherwise, except for subparagraphs 5, 6, 7,
and 8 of this section 4(g) which may be effected by Oral or Written
Instructions, the Custodian, directly or through the use of the
Book-Entry System or the Depository, shall:
1. Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorizations, and any other instruments
whereby the authority of the Fund as owner of any Securities may
be exercised;
2. Deliver or cause to be delivered any Securities held for the
Fund in exchange for other Securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing,
merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege;
3. Deliver or cause to be delivered any Securities held for the
Fund to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of
any corporation, and receive and hold under the terms of this
Agreement in the separate account for the Fund such certificates
of deposit, interim receipts or other instruments or documents
as may be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of the
Fund and take such other steps as shall be stated in Written
Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for
the account of the Fund pursuant to
Section 5;
6. Deliver Securities upon the receipt of payment
in connection with any repurchase
agreement related to such Securities entered into by the Fund;
7. Deliver Securities owned by the Fund to the issuer thereof or
its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such
case the cash or other consideration is to be delivered to the
Custodian. Notwithstanding the foregoing, the Custodian shall
have no responsibility to the Fund for monitoring or
ascertaining any call, redemption or retirement dates with
respect to the put bonds which are owned by the Fund and held by
the Custodian or its nominee. Nor shall the Custodian have any
responsibility or liability to the Fund for any loss by the Fund
for any missed payment or other default resulting therefrom;
unless the Custodian received timely notification from the Fund
specifying the time, place and manner for the presentment of any
such put bond owned by the Fund and held by the Custodian or its
nominee. The Custodian shall not be responsible and assumes no
liability to the Fund for the accuracy or completeness of any
notification the Custodian may furnish to the Fund with respect
to put bonds;
8. Deliver Securities in connection with any loans of Securities
made by the Fund but only against receipt of adequate collateral
as agreed upon from time to time by the Custodian and the Fund;
9. Deliver Securities as security in connection with any
borrowings by the Fund requiring a pledge of Fund assets, but
only against receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions from
the Fund for delivery to the Transfer Agent or to the holders of
Shares in connection with distributions in kind, as may be
described from time to time in the Fund's Prospectus, in
satisfaction of requests by holders of Shares for repurchase or
redemption;
11. Deliver Securities as collateral in connection with
short sales by the Fund;
12. Deliver Securities for any purpose expressly
permitted by and in accordance with
procedures described in the Fund's Prospectus; and
13. Deliver Securities for any other proper business purpose,
but only upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Trustees signed
by an Authorized Person and certified by the Secretary of the
Fund, specifying the Securities to be delivered, setting forth
the purpose for which such delivery is to be made, declaring
such purpose to be a proper business purpose, and naming the
person or persons to whom delivery of such Securities shall be
made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is hereby
authorized to endorse and collect all checks, drafts or other orders for
the payment of money received by the Custodian for the account of the
Fund.
5. Purchase and Sale of Investments of the Fund.
(a) Promptly after each purchase of Securities for the Fund, the Fund
shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, a Written Instruction,
and (ii) with respect to each purchase of Money Market Securities,
either a Written Instruction or Oral Instruction, in either case
specifying with respect to each purchase: (1) the name of the issuer and
the title of the Securities; (2) the number of shares or the principal
amount purchased and accrued interest, if any; (3) the date of purchase
and settlement; (4) the purchase price per unit; (5) the total amount
payable upon such purchase; (6) the name of the person from whom or the
broker through whom the purchase was made, if any; (7) whether or not
such purchase is to be settled through the Book-Entry System or the
Depository; and (8) whether the Securities purchased are to be deposited
in the Book-Entry System or the Depository. The Custodian shall receive
the Securities purchased by or for the Fund, and upon receipt of
Securities shall pay out of the monies held for the account of the Fund
the total amount payable upon such purchase, provided that the same
conforms to the total amount payable as set forth in such Written or
Oral Instruction.
(b) Promptly after each sale of Securities of the Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities
which are not Money Market Securities, a Written Instruction, and (ii)
with respect to each sale of Money Market Securities, either Written
Instruction or Oral Instructions, in either case specifying with respect
to such sale: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or principal amount sold, and
accrued interest, if any; (3) the date of sale; (4) the sale price per
unit; (5) the total amount payable to the Fund upon such sale; (6) the
name of the broker through whom or the person to whom the sale was made;
and (7) whether or not such sale is to be settled through the Book-Entry
System or the Depository. The Custodian shall deliver or cause to be
delivered the Securities to the broker or other person designated by the
Fund upon receipt of the total amount payable to the Fund upon such
sale, provided that the same conforms to the total amount payable to the
Fund as set forth in such Written or Oral Instruction. Subject to the
foregoing, the Custodian may accept payment in such form as shall be
reasonably satisfactory to it, and may deliver Securities and arrange
for payment in accordance with the customs prevailing among dealers in
Securities.
6. Lending of Securities.
If the Fund is permitted by the terms of the Master Trust
Agreement and as disclosed in its Prospectus to lend securities, within
24 hours before each loan of Securities, the Fund shall deliver to the
Custodian a Written Instruction specifying with respect to each such
loan: (a) the name of the issuer and the title of the Securities; (b)
the number of shares or the principal amount loaned; (c) the date of
loan and delivery; (d) the total amount to be delivered to the
Custodian, and specifically allocated against the loan of the
Securities, including the amount of cash collateral and the premium, if
any, separately identified; (e) the name of the broker, dealer or
financial institution to which the loan was made; and (f) whether the
Securities loaned are to be delivered through the Book-Entry System or
the Depository.
Promptly after each termination of a loan of Securities, the
Fund shall deliver to the Custodian a Written Instruction specifying
with respect to each such loan termination and return of Securities: (a)
the name of the issuer and the title of the Securities to be returned;
(b) the number of shares or the principal amount to be returned; (c) the
date of termination; (d) the total amount to be delivered by the
Custodian (including the cash collateral for such Securities minus any
offsetting credits as described in said Written Instruction); (e) the
name of the broker, dealer or financial institution from which the
Securities will be returned; and (f) whether such return is to be
effected through the Book-Entry System or the Depository. The Custodian
shall receive all Securities returned from the broker, dealer or
financial institution to which such Securities were loaned and upon
receipt thereof shall pay the total amount payable upon such return of
Securities as set forth in the Written Instruction. Securities returned
to the Custodian shall be held as they were prior to such loan.
7. Payment of Dividends or Distributions.
(a) The Fund shall furnish to the Custodian the vote of the Board of
Trustees of the Fund certified by the Secretary (i) authorizing the
declaration of distributions on a specified periodic basis and
authorizing the Custodian to rely on Oral or Written Instructions
specifying the date of the declaration of such distribution, the date of
payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to the
shareholders of record as of the record date and the total amount
payable to the Transfer Agent on the payment date, or (ii) setting forth
the date of declaration of any distribution by the Fund, the date of
payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to the
shareholders of record as of the record date and the total amount
payable to the Transfer Agent on the payment date.
(b) Upon the payment date specified in such vote, Oral Instructions or
Written Instructions, as the case may be, the Custodian shall pay out
the total amount payable to the Transfer Agent of the Fund.
8. Sale and Redemption of Shares of the Fund.
(a) Whenever the Fund shall sell any Shares, the Fund shall deliver or
cause to be delivered to the Custodian a Written Instruction duly
specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the
sale of such Shares.
The Custodian understands and agrees that Written Instructions
may be furnished subsequent to the purchase of Shares and that the
information contained therein will be derived from the sales of Shares
as reported to the Fund by the Transfer Agent.
(b) Upon receipt of money from the Transfer Agent, the Custodian shall
credit such money to the separate account of the Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay all original issue
or other taxes required to be paid in connection with such issuance upon
the receipt of a Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed, the
Fund shall cause the Transfer Agent to promptly furnish to the Custodian
Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information contained
in such Written Instructions will be derived from the redemption of
Shares as reported to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares received by the Transfer Agent for redemption and that
such Shares are valid and in good form for redemption, the Custodian
shall make payment to the Transfer Agent of the total amount specified
in a Written Instruction issued pursuant to paragraph (d) of this
Section 8.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by the Fund,
the Custodian, unless otherwise instructed by a Written Instruction
shall, upon receipt of advice from the Fund or its agent stating that
the redemption is in good form for redemption in accordance with the
check redemption procedure, honor the check presented as part of such
check redemption privilege out of the monies specifically allocated to
the Fund in such advice for such purpose.
9. Indebtedness.
(a) The Fund will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Fund borrows money for
temporary administrative or emergency purposes using Securities as
collateral for such borrowings, a notice or undertaking in the form
currently employed by any such bank setting forth the amount which such
bank will loan to the Fund against delivery of a stated amount of
collateral. The Fund shall promptly deliver to the Custodian Written
Instructions stating with respect to each such borrowing: (1) the name
of the bank; (2) the amount and terms of the borrowing, which may be set
forth by incorporating by reference an attached promissory note, duly
endorsed by the Fund, or other loan agreement; (3) the time and date, if
known, on which the loan is to be entered into (the "borrowing date");
(4) the date on which the loan becomes due and payable; (5) the total
amount payable to the Fund on the borrowing date; (6) the market value
of Securities to be delivered as collateral for such loan, including the
name of the issuer, the title and the number of shares or the principal
amount of any particular Securities; (7) whether the Custodian is to
deliver such collateral through the Book-Entry System or the Depository;
and (8) a statement that such loan is in conformance with the 1940 Act
and the Fund's Prospectus.
(b) Upon receipt of the Written Instruction referred to in subparagraph
(a) above, the Custodian shall deliver on the borrowing date the
specified collateral and the executed promissory note, if any, against
delivery by the lending bank of the total amount of the loan payable,
provided that the same conforms to the total amount payable as set forth
in the Written Instruction. The Custodian may, at the option of the
lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the lending bank
by virtue of any promissory note or loan agreement. The Custodian shall
deliver as additional collateral in the manner directed by the Fund from
time to time such Securities as may be specified in Written Instruction
to collateralize further any transaction described in this Section 9.
The Fund shall cause all Securities released from collateral status to
be returned directly to the Custodian, and the Custodian shall receive
from time to time such return of collateral as may be tendered to it. In
the event that the Fund fails to specify in Written Instruction all of
the information required by this Section 9, the Custodian shall not be
under any obligation to deliver any Securities. Collateral returned to
the Custodian shall be held hereunder as it was prior to being used as
collateral.
10. Persons Having Access to Assets of the Fund.
(a) No trustee or agent of the Fund, and no officer, director, employee
or agent of the Fund's investment adviser, of any sub-investment adviser
of the Fund, or of the Fund's administrator, shall have physical access
to the assets of the Fund held by the Custodian or be authorized or
permitted to withdraw any investments of the Fund, nor shall the
Custodian deliver any assets of the Fund to any such person. No officer,
director, employee or agent of the Custodian who holds any similar
position with the Fund's investment adviser, with any sub-investment
adviser of the Fund or with the Fund's administrator shall have access
to the assets of the Fund.
(b) Nothing in this Section 10 shall prohibit any duly authorized
officer, employee or agent of the Fund, or any duly authorized officer,
director, employee or agent of the investment adviser, of any
sub-investment adviser of the Fund or of the Fund's administrator, from
giving Oral Instructions or Written Instructions to the Custodian or
executing a Certificate so long as it does not result in delivery of or
access to assets of the Fund prohibited by paragraph (a) of this Section
10.
11. Concerning the Custodian.
(a) Standard of Conduct. Notwithstanding any other provision of this
Agreement, neither the Custodian nor its nominee shall be liable for any
loss or damage, including counsel fees, resulting from its action or
omission to act or otherwise, except for any such loss or damage arising
out of the negligence or willful misconduct of the Custodian or any of
its employees, sub-custodians or agents. The Custodian may, with respect
to questions of law, apply for and obtain the advice and opinion of
counsel to the Fund or of its own counsel, at the expense of the Fund,
and shall be fully protected with respect to anything done or omitted by
it in good faith in conformity with such advice or opinion. The
Custodian shall not be liable to the Fund for any loss or damage
resulting from the use of the Book-Entry System or the Depository.
(b) Limit of Duties. Without limiting the generality of the foregoing,
the Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any Securities
purchased
by the Fund, the legality of the
purchase thereof, or the propriety of the amount paid therefor;
2. The legality of the sale of any Securities by the
Fund or the propriety of the amount
for which the same are sold;
3. The legality of the issue or sale of any Shares,
or the sufficiency of the amount to be
received therefor;
4. The legality of the redemption of any Shares,
or the propriety of the amount to be paid
therefor;
5. The legality of the declaration or payment of
any distribution of the Fund;
6. The legality of any borrowing for temporary or
emergency administrative purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable for,
or considered to be the Custodian of, any money, whether or not
represented by any check, draft, or other instrument for the payment of
money, received by it on behalf of the Fund until the Custodian actually
receives and collects such money directly or by the final crediting of
the account representing the Fund's interest in the Book-Entry System or
the Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be under
any duty or obligation to take action to effect collection of any amount
due to the Fund from the Transfer Agent nor to take any action to effect
payment or distribution by the Transfer Agent of any amount paid by the
Custodian to the Transfer Agent in accordance with this Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be under
any duty or obligation to take action to effect collection of any
amount, if the Securities upon which such amount is payable are in
default, or if payment is refused after due demand or presentation,
unless and until (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.
(f) Appointment of Agents and Sub-Custodians. The Custodian may appoint
one or more banking institutions, including but not limited to banking
institutions located in foreign countries, to act as Depository or
Depositories or as sub-custodian or as sub-custodians of Securities and
monies at any time owned by the Fund. Notwithstanding the generality of
the foregoing, however, the Custodian shall not be liable for any losses
resulting from or caused by events or circumstances beyond its
reasonable control, including, but not limited to, losses resulting from
nationalization, expropriation, devaluation, revaluation, confiscation,
seizure, cancellation, destruction or similar action by any governmental
authority, de facto or de jure; or enactment, promulgation, imposition
or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges
affecting the Fund's property; or acts of war, terrorism, insurrection
or revolution; or any other similar act or event beyond the Custodian's
or its agent's control. This Section shall survive the termination of
this Agreement.
(g) No Duty to Ascertain Authority. The Custodian shall not be under any
duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for the Fund are such as may properly be held
by the Fund under the provisions of the Master Trust Agreement and the
Prospectus.
(h) Reliance on Certificates and Instructions. The Custodian shall be
entitled to rely upon any Certificate, notice or other instrument in
writing received by the Custodian and reasonably believed by the
Custodian to be genuine and to be signed by an officer or Authorized
Person of the Fund. The Custodian shall be entitled to rely upon any
Written Instructions or Oral Instructions actually received by the
Custodian pursuant to the applicable Sections of this Agreement and
reasonably believed by the Custodian to be genuine and to be given by an
Authorized Person. The Fund agrees to forward to the Custodian Written
Instructions from an Authorized Person confirming such Oral Instructions
in such manner so that such Written Instructions are received by the
Custodian, whether by hand delivery, telex or otherwise, by the close of
business on the same day that such Oral Instructions are given to the
Custodian. The Fund agrees that the fact that such confirming
instructions are not received by the Custodian shall in no way affect
the validity of the transactions or enforceability of the transactions
hereby authorized by the Fund. The Fund agrees that the Custodian shall
incur no liability to the Fund in acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions provided such
instructions reasonably appear to have been received from a duly
Authorized Person.
(i) Overdraft Facility and Security for Payment. In the event that the
Custodian is directed by Written Instruction (or Oral Instructions
confirmed in writing in accordance with Section 11(h) hereof) to make any
payment or transfer of monies on behalf of the Fund for which there would
be, at the close of business on the date of such payment or transfer,
insufficient monies held by the Custodian on behalf of the Fund, the
Custodian may, in its sole discretion, provide an overdraft (an
"Overdraft") to the Fund in an amount sufficient to allow the completion
of such payment or transfer. Any Overdraft provided hereunder: (a) shall
be payable on the next Business Day, unless otherwise agreed by the Fund
and the Custodian; and (b) shall accrue interest from the date of the
Overdraft to the date of payment in full by the Fund at a rate agreed
upon in writing, from time to time, by the Custodian and the Fund. The
Custodian and the Fund acknowledge that the purpose of such Overdraft is
to temporarily finance the purchase of Securities for prompt delivery in
accordance with the terms hereof, to meet unanticipated or unusual
redemptions, to allow the settlement of foreign exchange contracts or to
meet other emergency expenses not reasonably foreseeable by the Fund. The
Custodian shall promptly notify the Fund in writing (an "Overdraft
Notice") of any Overdraft by facsimile transmission or in such other
manner as the Fund and the Custodian may agree in writing. To secure
payment of any Overdraft, the Fund hereby grants to the Custodian a
continuing security interest in and right of setoff against the
Securities and cash in the Fund's account from time to time in the full
amount of such Overdraft. Should the Fund fail to pay promptly any
amounts owed hereunder, the Custodian shall be entitled to use available
cash in the Fund's account and to liquidate Securities in the account as
is necessary to meet the Fund's obligations under the Overdraft. In any
such case, and without limiting the foregoing, the Custodian shall be
entitled to take such other actions(s) or exercise such other options,
powers and rights as the Custodian now or hereafter has as a secured
creditor under the Massachusetts Uniform Commercial Code or any other
applicable law.
(j) Inspection of Books and Records. The books and records of the
Custodian shall be open to inspection and audit at reasonable times by
officers and auditors employed by the Fund and by the appropriate
employees of the Securities and Exchange Commission.
The Custodian shall provide the Fund with any report obtained by
the Custodian on the system of internal accounting control of the
Book-Entry System or the Depository and with such reports on its own
systems of internal accounting control as the Fund may reasonably
request from time to time.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set forth
above (the "Effective Date") and shall continue in effect thereafter
until such time as this Agreement may be terminated in accordance with
the provisions hereof.
(b) Either of the parties hereto may terminate this Agreement by giving
to the other party a notice in writing specifying the date of such
termination, which shall be not less than 60 days after the date of
receipt of such notice. In the event such notice is given by the Fund,
it shall be accompanied by a certified vote of the Board of Trustees of
the Fund, electing to terminate this Agreement and designating a
successor custodian or custodians, which shall be a person qualified to
so act under the 1940 Act.
In the event such notice is given by the Custodian, the Fund
shall, on or before the termination date, deliver to the Custodian a
certified vote of the Board of Trustees of the Fund, designating a
successor custodian or custodians. In the absence of such designation by
the Fund, the Custodian may designate a successor custodian, which shall
be a person qualified to so act under the ▇▇▇▇ ▇▇▇. If the Fund fails to
designate a successor custodian, the Fund shall upon the date specified
in the notice of termination of this Agreement and upon the delivery by
the Custodian of all Securities (other than Securities held in the
Book-Entry System which cannot be delivered to the Fund) and monies then
owned by the Fund, be deemed to be its own custodian and the Custodian
shall thereby be relieved of all duties and responsibilities pursuant to
this Agreement, other than the duty with respect to Securities held in
the Book-Entry System which cannot be delivered to the Fund.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in
such notice, and the Custodian shall upon receipt of a notice of
acceptance by the successor custodian on that date deliver directly to
the successor custodian all Securities and monies then held by the
Custodian on behalf of the Fund, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall then be
entitled.
13. Limitation of Liability.
The Fund and the Custodian agree that the obligations of the
Fund under this Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund, individually, but are binding only upon
the assets and property of the Fund, as provided in the Master Trust
Agreement. The execution and delivery of this Agreement have been
authorized by the Trustees of the Fund, and signed by an authorized
officer of the Fund, acting as such. Neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed
to have been made by any of them or any shareholder of the Fund
individually or to impose any liability on any of them or any
shareholder of the Fund personally, but shall bind only the assets and
property of the Fund as provided in the Master Trust Agreement. No
series of the Fund shall be liable for the obligations of any other
series under this Agreement.
14. Miscellaneous.
(a) Annexed hereto as Appendix B is a certification signed by the
Secretary of the Fund setting forth the names and the signatures of the
present Authorized Persons. The Fund agrees to furnish to the Custodian
a new certification in similar form in the event that any such present
Authorized Person ceases to be such an Authorized Person or in the event
that other or additional Authorized Persons are elected or appointed.
Until such new certification shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement upon
Oral Instructions or signatures of the present Authorized Persons as set
forth in the last delivered certification.
(b) Annexed hereto as Appendix C is a certification signed by the
Secretary of the Fund setting forth the names and the signatures of the
present officers of the Fund. The Fund agrees to furnish to the
Custodian a new certification in similar form in the event any such
present officer ceases to be an officer of the Fund or in the event that
other or additional officers are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully protected
in acting under the provisions of this Agreement upon the signature of
an officer as set forth in the last delivered certification.
(c) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given
if addressed to the Custodian and mailed or delivered to it at its
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such
other place as the Custodian may from time to time designate in writing.
(d) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund, shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its offices at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such
other place as the Fund may from time to time designate in writing.
(e) This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the same formality
as this Agreement (i) authorized, or ratified and approved by a vote of
the Board of Trustees of the Fund, or (ii) authorized, or ratified and
approved by such other procedures as may be permitted or required by the
1940 Act.
(f) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the
written consent of the Custodian, or by the Custodian without the
written consent of the Fund authorized or approved by a vote of the
Board of Trustees of the Fund provided, however, that the Custodian may
assign the Agreement to an Affiliated Person, and any attempted
assignment without such written consent shall be null and void. Nothing
in this Agreement shall give or be construed to give or confer upon any
third party any rights hereunder.
(g) The Fund represents that a copy of the Master Trust Agreement is on
file with the Secretary of the Commonwealth of Massachusetts and with
the Boston City Clerk's Office.
(h) This Agreement shall be construed in accordance with the laws of The
Commonwealth of Massachusetts.
(i) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
(j) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day and
year first above written.
FUNDS LISTED ON APPENDIX A
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
APPENDIX A
Kobren Insight Funds
- Kobren Growth Fund
- Kobren Moderate Growth Fund
- Kobren Conservative Allocation Fund
APPENDIX B
I, ▇▇▇▇ ▇▇▇▇▇, the Secretary of the Funds listed on Appendix A, each a
business trust organized under the laws of the Commonwealth of Massachusetts
(the "Fund"), do hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Oral Instructions and Written Instructions on behalf of the Fund
and the specimen signatures set forth opposite their respective names are their
true and correct signatures:
Name Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
FUNDS LISTED ON APPENDIX A
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Secretary
Dated: November 18, 1996
APPENDIX C
I, ▇▇▇▇ ▇▇▇▇▇, the Secretary of the Funds listed on Appendix A, each a
business trust organized under the laws of the Commonwealth of Massachusetts
(the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the Fund
and each individual has been duly elected or appointed to each such position and
qualified therefor in conformity with the Fund's Master Trust Agreement and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇ Chairman of the Board /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ President /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Treasurer /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Secretary /s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President and
Investment Officer /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
FUNDS LISTED ON APPENDIX A
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Secretary
Dated: November 18, 1996
SCHEDULE A
CUSTODY FEE SCHEDULE
Structural Charges
$2,000 per domestic fund
$5,000 per global fund
Administrative Fee
1.5 basis points on first $250 million of USD assets 1.0 basis points
on all USD assets thereafter 3.0 basis points on first on all non-USD
assets
Global Custody Network Fees
Assets held in specific countries will incur additional annualized asset-based
charges, plus transaction charges associated with each region.
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ $6 per mutual fund transaction
$8 per book entry transaction
$25 per physical transaction
$25 per futures transaction
$40 per options round-trip
$6 per wire
$8 per paydown
Category II
Australia Germany 2.0 basis points on the market value
Canada Japan $20 per buy/sell transaction
Cedel United Kingdom
Euroclear South Africa
Category III
Belgium Ireland 3.5 basis points on the market value
Netherlands Switzerland $40 per buy/sell transaction
Sweden
Category IV
Finland New Zealand 6.0 basis points on the market value
Denmark Norway $50 per buy/sell transaction
France Spain
Italy Mauritius
Mexico
Category V
Austria Singapore 12.0 basis points on market value
Hong Kong Thailand $50 per buy/sell transaction
S. Korea Philippines
Category VI
Argentina Shanghai 20.0 basis points on market value
Shenzen Sri Lanka $60 per buy/sell transaction
Indonesia Malaysia
Portugal
Category VII
Zimbabwe Luxembourg 40.0 basis points on market value
Peru Turkey $85 per buy/sell transaction
Brazil Chile
Columbia Cyprus
Greece Israel
Hungary India
Jordan Botswana
Pakistan Poland
Uruguay Venezuela
Bangladesh Ghana
Trinidad/Tobago
Minimum Fee Per Fund: (based of funds net assets)
Assets of $ 0 - $100 million $3,000.00
Assets of $100 - $200 million $5,000.00
Assets of $200 - $300 million $7,500.00
Assets above $300 million $10,000.00
SCHEDULE B
The Fund will pay to the Custodian as soon as possible after the end of
each month all out-of-pocket expenses reasonably incurred in connection with the
assets of the Fund.