EXHIBIT (9)(a)
3/98
NON-ERISA
W/O RE
CUSTODY AGREEMENT
BY AND BETWEEN
AND
BOSTON SAFE DEPOSIT AND TRUST COMPANY
TABLE OF CONTENTS
SECTION PAGE
1. Establishment of/Additions to Account . . . . . . . . . . . . . . . 1
2. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Authorized Parties . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. Authorized Instructions . . . . . . . . . . . . . . . . . . . . . . 2
5. Directed Powers of Custodian . . . . . . . . . . . . . . . . . . . . 2
6. Discretionary Powers of Custodian . . . . . . . . . . . . . . . . . 3
7. Duties of Custodian . . . . . . . . . . . . . . . . . . . . . . . . 4
8. Contractual Income and Settlement . . . . . . . . . . . . . . . . . 5
9. Tax Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. Non-Account Assets . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. Reporting and Recordkeeping . . . . . . . . . . . . . . . . . . . . 6
12. Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . 7
13. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
14. Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . 8
15. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 8
16. Amendment or Termination . . . . . . . . . . . . . . . . . . . . . . 8
17. Governing, Law and Legal Proceedings . . . . . . . . . . . . . . . . 8
18. Representations . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19. Necessary Parties . . . . . . . . . . . . . . . . . . . . . . . . . 9
20. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . 9
TAXPAYER IDENTIFICATION NUMBER CERTIFICATION . . . . . . . . . . . . . 11
CUSTODY AGREEMENT
THIS CUSTODY AGREEMENT made as of __________________, 19__
("Agreement") by and between _______________________________, a
____________________________ organized under the laws of
_______________________________ ("Client") and Boston Safe Deposit and
Trust Company, a Massachusetts trust company ("Custodian").
WITNESSETH:
WHEREAS, the Client and the Custodian desire to establish a custody
account to provide for the safekeeping and recordkeeping of certain
property of the Client;
NOW, THEREFORE, the Client and the Custodian, each intending to be
legally bound, agree as follows:
1. Establishment of/Additions to Account
The Client hereby appoints Boston Safe Deposit and Trust Company as
Custodian for any property acceptable to the Custodian which the Client may
deposit to the Custodian's care ("Account"). The Custodian shall have no
responsibility for any property until it in fact is received by the
Custodian or its agents or subcustodians. "Property" as used herein shall
not include any direct interest in real property, leaseholds or mineral
interests.
2. Distributions
The Custodian shall make distributions or transfers out of the Account
pursuant to Authorized Instructions, as defined below. In making payments
to service providers pursuant to Authorized Instructions, the Client
acknowledges that the Custodian is acting as a paying agent, and not as the
payor, for tax information reporting and withholding purposes.
3. Authorized Parties
The Client shall furnish the Custodian with a written list of the
names and signatures of all persons authorized to direct the Custodian on
behalf of the Client under the terms of this Agreement. In addition, the
Client may appoint and remove one or more investment managers ("Investment
Manager") for such portion of the Account as the Client shall designate to
the Custodian in writing. The Investment Manager shall furnish the
Custodian with a written list of the names and signatures of the person or
persons who are authorized to represent the Investment Manager in dealings
with the Custodian. The Custodian shall be entitled to deal with any
person or entity so identified by the Client or Investment Manager
("Authorized Party or Authorized Parties") until notified otherwise in
writing. The Custodian shall be under no duty to question any direction of
an Authorized Party with respect to the portion of the Account over which
such Authorized Party has authority, to review any Property held in the
Account, to make any suggestions with respect to the investment and
reinvestment of the assets in the Account, or to evaluate or question the
performance of any Authorized Party. The Custodian shall not be
responsible or liable for any diminution of value of any securities or
other property held by the Custodian (or its subcustodians).
4. Authorized Instructions
All directions and instructions to the Custodian from an Authorized
Party shall be in writing, by facsimile transmission, electronic
transmission, or any other method specifically agreed to in writing by the
Client and the Custodian, provided the Custodian may, in its discretion,
accept oral directions and instructions and may require confirmation in
writing. The Custodian shall be fully protected in acting in accordance
with all such directions and instructions ("Authorized Instructions") which
it reasonably believes to have been given by an Authorized Party or in
failing to act in the absence thereof.
5. Directed Powers of Custodian
The Custodian shall have and exercise the following powers and
authority in the administration of the Account upon the direction of an
Authorized Party:
a. Settle purchases and sales and engage in other transactions,
including free receipts and deliveries, exchanges and other voluntary
corporate actions, with respect to securities or other property received by
the Custodian;
b. Execute proxies for any stocks, bonds or other securities held in
the Account;
c. Lend the assets of the Account in accordance with the terms and
conditions of a separate securities lending agreement; and
d. Take any and all actions necessary to settle transactions in
futures and/or options contracts, short-selling programs, foreign exchange
or foreign exchange contracts, swaps and other derivative investments.
Settlements of transactions may be effected in trading and processing
practices customary in the jurisdiction or market where the transaction
occurs. The Client acknowledges that this may, in certain circumstances,
require the delivery of cash or securities (or other property) without the
concurrent receipt of securities (or other property) or cash and, in such
circumstances, the Client shall have responsibility for nondelivery of
securities or other property (or late delivery) or nonreceipt of payment
(or late payment) by the counterparty.
6. Discretionary Powers of Custodian
The Custodian shall have and exercise the following powers and
authority in the administration of the Account:
a. Appoint sub-custodians (including a corporate affiliate of the
Custodian), domestic or foreign, as to part or all of the Account;
b. Hold property in nominee name, in bearer form or in book entry
form, in a clearinghouse corporation or in a depository, so long as the
Custodian's records clearly indicate that the assets held are a part of the
Account;
c. Commence or defend suits or legal proceedings and represent the
Account in all suits or legal proceedings in any court or before any other
body or tribunal as the Custodian shall deem necessary to protect the
Account;
d. Employ suitable agents and legal counsel, who may be counsel for
the Client, and, as a part of its reimbursable expenses under this
Agreement, pay their reasonable compensation and expenses. The Custodian
shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice;
e. Take all action necessary to pay for authorized transactions,
including exercising the power to borrow or raise monies from the Custodian
in its corporate capacity or an affiliate of the Custodian and shall hold
any property in the Account as security for advances made to the Account
for any such authorized transactions, including disbursements or expenses,
or the purchase or sale of foreign exchange, or of contracts for foreign
exchange. The Custodian shall be entitled to collect from the Account
sufficient cash for reimbursement, and if such cash is insufficient,
dispose of the assets of the Account to the extent necessary to obtain
reimbursement;
f. Make, execute and deliver any and all documents, agreements or
other instruments in writing as is necessary or desirable for the
accomplishment of any of the powers in this Agreement; and
g. Generally take all action, whether or not expressly authorized,
which the Custodian may deem necessary or desirable for the fulfillment of
its duties hereunder.
The powers described in this Section 6 may be exercised by the
Custodian with or without Authorized Instructions, but where the Custodian
acts on Authorized Instructions, the Custodian shall be fully protected as
described in Section 4. Without limiting the generality of the foregoing,
the Custodian shall not be liable for the acts or omissions of any
subcustodian appointed under paragraph (a) of this Section 6 pursuant to
Authorized Instructions including, but not limited to, any broker-dealer or
other entity designated by the Client or Investment Manager to hold any
property of the Account as collateral or otherwise pursuant to investment
strategy.
7. Duties of Custodian
The Custodian shall perform or cause its agents or subcustodians to
perform the following duties with respect to the Account:
a. Hold the property in safekeeping facilities of the Custodian or
of other custodian banks or clearing corporations, in the United States or
elsewhere; provided that the Custodian shall not be responsible for any
losses resulting from the deposit or maintenance of securities or other
property (in accordance with market practice, custom, or regulation) with
any recognized foreign or domestic clearing facility, book-entry system,
centralized custodial depository, or similar organization;
b. Collect all income payable to and all distributions due to the
Account and sign on the Account's behalf all declarations, affidavits, and
certificates of ownership required to collect income and principal
payments; provided that the Custodian shall not be responsible for the
failure to receive payment of (or late payment of) distributions with
respect to securities or other property held in the Account;
c. Subject to the timely receipt of notice from an issuer or
Authorized Party, collect all proceeds from securities, certificates of
deposit or other investments which may mature or be called;
d. Submit or cause to be submitted to the Client or the Investment
Manager, as designated by the Client, information actually received by the
Custodian regarding ownership rights pertaining to property held in the
Account;
e. Attend to involuntary corporate actions;
f. Determine the fair market value of the Account as of such dates
as the Client and the Custodian may agree upon, in accordance with methods
consistently followed and uniformly applied. In determining fair market
value of the Account, the Custodian shall be protected in relying on values
recommended by an Authorized Party; and
g. Render periodic statements for property held hereunder.
8. Contractual Income and Settlement
a. Contractual Income. The Custodian shall credit the Account with
income and maturity proceeds on securities on contractual payment date net
of any taxes or upon actual receipt as agreed between the Custodian and the
Client. To the extent the Client and the Custodian have agreed to credit
income on contractual payment date, the Custodian may reverse such
accounting entries with back value to the contractual payment date if the
Custodian reasonably believes that it will not receive such amount.
b. Contractual Settlement. The Custodian will attend to the
settlement of securities transactions on the basis of either contractual
settlement date accounting or actual settlement date accounting as agreed
between the Client and the Custodian. To the extent the Client and the
Custodian have agreed to settle certain securities transactions on the
basis of contractual settlement date accounting, the Custodian may reverse
with back value to the contractual settlement date any entry relating to
such contractual settlement where the related transaction remains unsettled
in accordance with established procedures.
9. Tax Law
a. The Custodian shall use reasonable efforts to assist the
Authorized Party, to the extent the Authorized Party has provided necessary
information, with respect to any tax obligations, including responsibility
for taxes, withholding, certification and reporting requirements, claims
for exemptions or refund, interest, penalties and other expenses ("Tax
Obligations"). The Client shall cause the Authorized Party to notify the
Custodian in writing of any such Tax Obligations. The Custodian shall have
no responsibility or liability for any Tax Obligations now or hereafter
imposed on the Client or the Account by any taxing authorities, domestic or
foreign.
b. To the extent the Custodian is responsible under any applicable
law for any Tax Obligation, the Client shall cause the Authorized Party to
inform the Custodian of all Tax Obligations, shall direct the Custodian
with respect to the performance of such Tax Obligations and shall provide
the Custodian with the necessary funds and all information required by the
Custodian to meet such Tax Obligations.
10. Non-Account Assets
The Client may request the Custodian to perform a recordkeeping
function with respect to property held by others and not otherwise subject
to the terms of this Agreement. To the extent the Custodian shall agree to
perform this service, its sole responsibility shall be to accurately
reflect information on its books which it has received from an Authorized
Party.
11. Reporting and Recordkeeping
If, within ninety (90) days after the Custodian mails to the Client a
statement with respect to the Account, the Client has not given the
Custodian written notice of any exception or objection thereto, the
statement shall be deemed to have been approved, and in such case, the
Custodian shall not be liable for any matters in such statements. The
Client shall have the right, at its own expense and with prior written
notice to the Custodian, to inspect the Custodian's books and records
directly relating to the Account during normal business hours or to
designate an accountant to make such inspection.
12. Standard of Care
In performing its duties under this Agreement, the Custodian shall
exercise the same care and diligence that it would devote to its own
property in like circumstances. The duties of the Custodian shall only be
those specifically undertaken pursuant to this Agreement. The Custodian
shall not be responsible or liable for any losses or damages suffered by
the Client arising as a result of the insolvency of any subcustodian,
except to the extent the Custodian was negligent in its selection or
continued retention of such subcustodian.
The Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in
acting upon any notice, request, direction, instruction, consent,
certification or other instrument believed by it to be genuine and
delivered by an Authorized Party. The Custodian shall not be liable for
any act or omission of any other person in carrying out any responsibility
imposed upon such person and under no circumstances shall the Custodian be
liable for any indirect, consequential or special damages with respect to
the role as Custodian.
13. Force Majeure
Notwithstanding anything in this Agreement to the contrary contained
herein, the Custodian shall not be responsible or liable for its failure to
perform under this Agreement or for any losses to the Account resulting
from any event beyond the reasonable control of the Custodian, its agents
or subcustodians, including but not limited to nationalization, strikes,
expropriation, devaluation, seizure, 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, levies or other charges affecting the Account's
property; or the breakdown, failure or malfunction of any utilities or
telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions or acts of war,
terrorism, insurrection or revolution; or acts of God; or any other similar
event. This Section shall survive the termination of this Agreement.
14. Compensation and Expenses
The Custodian shall be entitled to compensation for services under
this Agreement as mutually agreed. The Client acknowledges that, as part
of the Custodian's compensation, the Custodian may earn interest on
balances, including disbursement balances and balances arising from
purchase and sale transactions. The Custodian shall also be entitled to
reimbursement for reasonable expenses incurred by it in the discharge of
its duties under this Agreement. The Custodian is authorized to charge and
collect from the Account any and all fees and expenses earned unless such
fees and expenses are paid directly by the Client. To the extent the
Custodian advances funds to the Account for disbursements or to effect the
settlement of purchase transactions, the Custodian shall be entitled to
collect from the Account either (i) with respect to domestic assets, an
amount equal to what would have been earned on the sums advanced (an amount
approximating the "federal funds" interest rate) or (ii) with respect to
non-domestic assets, the rate applicable to the appropriate foreign market.
15. Indemnification
The Client shall indemnify and hold harmless the Custodian from all
liability and expense, including reasonable counsel fees and expenses,
arising out of the performance of its obligations under this Agreement,
except as a result of the Custodian's own negligence or willful misconduct.
This indemnification shall survive the termination of this Agreement.
16. Amendment or Termination
This Agreement may be amended by written agreement of the Client and
the Custodian and may be terminated by either party upon ninety (90) days'
notice in writing to the other party.
17. Governing, Law and Legal Proceedings
This Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of Massachusetts. The parties hereby
expressly waive, to the full extent permitted by applicable law, any right
to trial by jury with respect to any judicial proceeding arising from or
related to this Agreement.
18. Representations
The Client and the Custodian hereby each represent and warrant to the
other that it has full authority to enter into this Agreement upon the
terms and conditions hereof and that the individual executing this
Agreement on its behalf has the requisite authority to bind the Client or
the Custodian to this Agreement
19. Necessary Parties
All of the understandings, agreements, representations and warranties
contained herein are solely for the benefit of the Client and the Custodian
and there are no other parties who are intended to be benefitted, in any
way whatsoever, by this Agreement.
20. Execution in Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and said counterparts shall constitute
but one and the same instrument and may be sufficiently evidenced by one
counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
Authorized Signer of: Authorized Officer of:
_______________________ BOSTON SAFE DEPOSIT
(Client) AND TRUST COMPANY
By:____________________ By: ______________________
Name: Name:
Title: Title:
Date:__________________ Date: _____________________
Address for Notice: Address for Notice:
________________________ One Cabot Road
________________________ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
________________________ Attention: _________________
Taxable: _______________
or
Tax Exempt: _____________
(Under IRC Section: _____)
__________________________
Fiscal Year
TAXPAYER IDENTIFICATION NUMBER CERTIFICATION
By signing below the Client hereby certifies under penalties of perjury
that the taxpayer identification number provided below is correct and that
the Client is not subject to backup withholding on reportable payments
credited to the Client's Account by the Custodian. The Client may not be
subject to back-up withholding either because (a) the Client is exempt from
back-up withholding because it is an "exempt recipient", (b) the Client has
not been notified by the Internal Revenue Service that it is subject to
back-up withholding for failure to report all interest or dividends, or (c)
the IRS has notified the Client that it is no longer subject to back-up
withholding. (If (a), (b), or (c) do not apply, please cross out.)
FAILURE TO SIGN BELOW AND PROVIDE A VALID TAXPAYER IDENTIFICATION NUMBER
MAY REQUIRE THAT THE CUSTODIAN APPLY FEDERAL INCOME TAX WITHHOLDING AT THE
RATE OF 31% (OR THE RATE AS REQUIRED BY LAW) ON ALL REPORTABLE PAYMENTS
MADE TO THE ACCOUNT ESTABLISHED UNDER THIS AGREEMENT.
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY
PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID
BACKUP WITHHOLDING.
__________________________
(CLIENT)
BY: _______________________
NAME: _____________________
TITLE: ____________________
____________________________
TAXPAYER IDENTIFICATION NUMBER