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Exhibit 8(a)-1
CUSTODY AGREEMENT
AGREEMENT dated as of July 7, 1989, between ▇▇ ▇▇▇▇▇▇ TRUST FUNDS, (the
"Trust"), a Massachusetts business trust, 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 Trust 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) "Authorized Person" shall be deemed to include 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 Trust,
duly authorized by the Board of Trustees of the Trust to give Oral
Instructions and Written Instructions on behalf of the Trust and listed
in the certification annexed hereto as Appendix A or such other
certification as may be received by the Custodian from time to time;
(b) "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;
(c) "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 Trust by such Authorized Person as the Trust
shall designate;
(d) "Declaration of Trust" shall mean the Declaration of Trust of the
Trust dated February 22, 1989 as the same may be amended from time to
time;
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(e) "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;
(f) "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, 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;
(g) "Oral Instructions" shall mean verbal instructions
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person;
(h) "Portfolio" refers to GW Global Income Money Market Fund, GW U.S.
Government Money Market Fund, GW California Municipal Money Market
Fund, GW U.S. Government Securities Fund, GW California Municipal
Income Fund and GW Growth and Income Fund or any such other separate
and distinct portfolio as may from time to time be created and
designated by the Trust in accordance with the provisions of the
Declaration of Trust;
(i) "Prospectus" shall mean the Trust's current prospectus and
statement of additional information relating to the registration of the
Trust's Shares under the Securities Act of 1933, as amended;
(j) "Shares" refers to the shares of beneficial interest of
each Portfolio of the Trust;
(k) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities and investments from time to time owned by each Portfolio;
(l) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent
functions for the Trust;
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(m) "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 whereby the receiver
of such communication is able to verify through codes or otherwise with
a reasonable degree of certainty the authenticity of the sender of such
communication; and
(n) 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 Trust hereby constitutes and appoints the Custodian as
custodian of all the Securities and moneys at the time owned by or in
the possession of the Trust and specifically allocated to a Portfolio
during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian for each
Portfolio and agrees to perform the duties thereof as hereinafter set
forth.
3. Compensation.
(a) The Trust will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in the Fee
Letter Agreement dated July 7, 1989, between the Trust, the Custodian,
the Shareholder Services Group, Inc. as Transfer Agent, The Boston
Company Advisors, Inc. as Sub-Administrator and Great Western Fund
Administration Corporation as Administrator (the "Fee Letter
Agreement"). Out-of-pocket disbursements shall include, but shall not
be limited to, the items specified in the Out-of-Pocket Expenses
charges delineated in the Fee Letter Agreement and incorporated herein,
which schedule may be modified by the Custodian upon not less than
thirty days prior written notice to the Trust.
(b) The parties hereto will agree upon the compensation for acting as
custodian for any Portfolio hereafter established and designated, and
at the time that the Custodian commences serving as such for said
Portfolio, such agreement shall be reflected in a Fee Letter Agreement
for that Portfolio, dated and signed by an officer of each party
hereto.
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(c) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to the Fee Letter Agreement a revised Fee Schedule,
dated and signed by an Authorized Person of the Trust and a duly
authorized officer of the Custodian.
(d) The Custodian will ▇▇▇▇ the Trust for each Portfolio as soon as
practicable after the end of each calendar month, and said ▇▇▇▇▇▇▇▇
will be detailed in accordance with the Fee Schedule for each
Portfolio. The Trust will promptly pay to the Custodian the amount of
such billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Trust will deliver or cause to
be delivered to the Custodian all Securities and moneys owned by it at
any time during the period of this Agreement and shall specify the
Portfolio to which the Securities and moneys are to be specifically
allocated. The Custodian will not be responsible for such Securities
and moneys until actually received by it. The Trust 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 or Written
Instructions, as to the manner in which and in what amounts Securities
and moneys of a Portfolio are to be deposited on behalf of such
Portfolio in the Book-Entry System or the Depository and specifically
allocated on the books of the Custodian to such Portfolio; provided,
however, that prior to the deposit of Securities of a Portfolio 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.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for each Portfolio and shall credit to the
separate account of each Portfolio all moneys received by it for the
account of such Portfolio and shall disburse the same only:
1. In payment for Securities purchased for such Portfolio, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with respect to the
Shares of such Portfolio, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to the
Shares of such Portfolio, as provided in Section 8 hereof;
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4. In payment for Shares which have been redeemed by such
Portfolio, as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect to Money
Market Securities, Oral Instructions or Written Instructions,
setting forth the name of such Portfolio, 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; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to such Portfolio, as
provided in Section 11(h) hereof.
(c) Confirmation and Statements. Promptly after the close of business
on each day, the Custodian shall furnish the Trust with confirmations
and a summary of all transfers to or from the account of each Portfolio
during said day. Where securities purchased by a Portfolio 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
such Portfolio. At least monthly, the Custodian shall furnish the Trust
with a detailed statement of the Securities and moneys held for each
Portfolio under this Agreement.
(d) Registration of Securities and Physical Separation. All Securities
held for a Portfolio 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 a
Portfolio may be registered in the name of that Portfolio, 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 Trust reserves the right to instruct
the Custodian as to the method of registration and safekeeping of the
Securities of each Portfolio. The Trust agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to hold or
deliver in proper form for transfer, or to register in the name of its
registered nominee or in the name of the Book-Entry System or the
Depository, any Securities which it may hold for the account of a
Portfolio and which may from time to time be registered in the name of
a Portfolio. The Custodian shall hold all such Securities specifically
allocated to a Portfolio which are not held in the Book-Entry System
or the Depository in a separate account for such Portfolio in the name
of such Portfolio physically segregated at all times from those of any
other person or persons.
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(e) Collection of Income and Other Matters Affecting Securities. Unless
otherwise instructed to the contrary by a Certificate, 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 a Portfolio 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 or retired, or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Trust or the
Portfolio for monitoring or ascertaining any call, redemption or
retirement dates with respect to put bonds which are owned by the
Trust or the Portfolio and held by the Custodian or its nominees.
Nor shall the Custodian have any responsibility or liability to the
Fund or the Portfolio for any loss by the Fund or the Portfolio for
any missed payments or other defaults resulting therefrom; unless
the Custodian received timely notification from the Trust
specifying the time, place and manner for the presentment of any
such put bond owned by the Trust or the Portfolio and held by the
Custodian or its nominee. The Custodian shall not be responsible
and assumes no liability to the Trust or the Portfolio for the
accuracy or completeness of any notification the Custodian may
furnish to the Trust 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 each Portfolio all rights and similar Securities issued
with respect to any Securities held by the Custodian hereunder for
each Portfolio.
(f) Delivery of Securities and Evidence of Authority. Upon receipt of
Written Instructions and not otherwise, except for subparagraphs 5, 6,
7, and 8 which may be effected by Oral Instructions and confirmed by
Written Instructions 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 Instruction
proxies, consents, authorizations, and any other instruments
whereby the authority of the Trust as owner of any Securities may
be exercised;
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2. Deliver or cause to be delivered any Securities held for a
Portfolio 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 a
Portfolio 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 each Portfolio 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 a
Portfolio and take such other steps as shall be stated in said
Written Instruction to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust;
5. Deliver Securities owned by any Portfolio upon sale of such
Securities for the account of such Portfolio pursuant to Section 5;
6. Deliver Securities owned by any Portfolio upon the receipt of
payment in connection with any repurchase agreement related to such
Securities entered into by such Portfolio;
7. Deliver Securities owned by any Portfolio 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 Trust or the Portfolio for monitoring or
ascertaining any call, redemption or retirement dates with respect
to the put bonds which are owned by the Trust or the Portfolio and
held by the Custodian or its nominee. Nor shall the Custodian have
any responsibility or liability to the Trust or the Portfolio for
any loss by the Trust or the Portfolio for any missed payment or
other default resulting therefrom; unless the Custodian received
timely notification from the Trust specifying the time, place and
manner for the presentment of any such put bond owned by the Trust
or the Portfolio and held by the Custodian or its nominee. The
Custodian shall not be responsible and assumes no liability to the
Trust or the Portfolio for the accuracy or completeness of any
notification the Custodian may furnish to the Trust with respect to
put bonds;
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8. Deliver Securities owned by any Portfolio for delivery in
connection with any loans of securities made by such Portfolio but
only against receipt of adequate collateral as agreed upon from
time to time by the Custodian and the Trust which may be in the
form of cash or obligations issued by the United States government,
its agencies or instrumentalities;
9. Deliver Securities owned by any Portfolio for delivery as
security in connection with any borrowings by such Portfolio
requiring a pledge of Portfolio assets, but only against receipt of
amounts borrowed;
10. Deliver Securities owned by any Portfolio upon receipt of
instructions from such Portfolio 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 Trust's
Prospectus, in satisfaction of requests by holders of Shares for
repurchase or redemption; and
11. Deliver Securities owned by any Portfolio 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 Trust, 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.
(g) 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 a
Portfolio.
5. Purchase and Sale of Investments of the Portfolios.
(a) Promptly after each purchase of Securities for a Portfolio, the Trust shall
deliver to the Custodian (i) with respect to each purchase of Securities which
are not Money Market Securities, Written Instruction, and (ii) with respect to
each purchase of Money Market Securities, either a Written or Oral Instruction,
in either case specifying with respect to each purchase: (1) the name of the
Portfolio to which such Securities are to be specifically allocated; (2) the
name of the issuer and the title of the Securities; (3) the number of shares or
the principal amount purchased and accrued interest, if any; (4) the date of
purchase and settlement; (5) the purchase price per unit; (6) the total amount
payable upon such purchase; (7) the name of the person from whom or the broker
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through whom the purchase was made, if any; (8) whether or not such purchase is
to be settled through the Book-Entry System or the Depository; and (9) whether
the Securities purchased are to be deposited in the Book-Entry System or the
Depository. The Custodian shall receive all Securities purchased by or for a
Portfolio and upon receipt of such Securities shall pay out of the moneys held
for the account of such Portfolio 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 a Portfolio, the Trust shall
deliver to the Custodian (i) with respect to each sale of Securities which are
not Money Market Securities, Written Instruction, and (ii) with respect to each
sale of Money Market Securities, either Written or Oral Instruction, in either
case specifying with respect to such sale: (1) the name of the Portfolio to
which the Securities sold were specifically allocated; (2) the name of the
issuer and the title of the Securities; (3) the number of shares or principal
amount sold, and accrued interest, if any; (4) the date of sale; (5) the sale
price per unit; (6) the total amount payable to the Portfolio upon such sale;
(7) the name of the broker through whom or the person to whom the sale was made;
and (8) 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 Trust upon receipt of
the total amount payable to such Portfolio upon such sale, provided that the
same conforms to the total amount payable to such Portfolio as set forth in such
Written or Oral Instruction. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver Securities
and arrange for payment in accordance with the customs prevailing among dealers
in Securities.
6. Lending of Securities.
If any Portfolio is permitted by the terms of the Declaration of Trust
and as disclosed in its Prospectus to lend Securities specifically allocated to
that Portfolio, within 24 hours after each loan of Securities, the Trust shall
deliver to the Custodian Written Instruction specifying with respect to each
such loan: (1) the Portfolio to which the loaned securities are specifically
allocated; (2) the name of the issuer and the title of the Securities; (3) the
number of shares or the principal amount loaned; (4) the date of loan and
delivery; (5) the total amount to be delivered to the Custodian, and
specifically allocated to such Portfolio against the loan of the Securities,
including the amount of cash collateral and the premium, if any, separately
identified; (6) the name of the broker, dealer or financial institution to which
the loan was made; and (7) whether the Securities loaned are to be delivered
through the Book-Entry System or the Depository.
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Promptly after each termination of a loan of securities specifically
allocated to a Portfolio, the Trust shall deliver to the Custodian Written
Instruction specifying with respect to each such loan termination and return of
Securities: (1) the name of the Portfolio to which such loaned Securities are
specifically allocated; (2) the name of the issuer and the title of the
Securities to be returned; (3) the number of shares or the principal amount to
be returned; (4) the date of termination; (5) 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 Instructions); (6) the name of
the broker, dealer or financial institution from which the Securities will be
returned; and (7) 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, out of the moneys specifically
allocated to such Portfolio, the total amount payable upon such return of
Securities as set forth in such 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 Trust shall furnish to the Custodian the resolution of the Board of
Trustees of the Trust certified by the Secretary (i) authorizing the declaration
of dividends with respect to a Portfolio on a specified periodic basis and
authorizing the Custodian to rely on Oral or Written Instructions specifying the
date of the declaration of such dividend or distribution, the date of payment
thereof, the record date as of which shareholders entitled to payment shall be
determined, the amount payable per share 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 dividend or
distribution by a Portfolio, 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 resolution, Oral Instructions, or
Written Instructions, as the case may be, the Custodian shall pay out the moneys
specifically allocated to and held for the account of the appropriate Portfolio
the total amount payable to the Transfer Agent of the Trust.
8. Sale and Redemption of Shares of the Portfolios.
(a) Whenever the Trust shall sell any Shares of a Portfolio, the Trust shall
deliver or cause to be delivered to the Custodian Written Instruction duly
specifying:
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1. The name of the Portfolio whose Shares were sold;
2. The number of Shares sold, trade date, and price; and
3. The amount of money to be received by the Custodian for the sale of such
Shares and specifically allocated to such Portfolio.
(b) Upon receipt of such money from the Transfer Agent, the Custodian shall
credit such money to the separate account of the Portfolio specified in
subparagraph (1) of paragraph (a) of this Section 8.
(c) Upon issuance of any Shares of a Portfolio in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay, out of the moneys
specifically allocated and held for the account of such Portfolio, all original
issue or other taxes required to be paid in connection with such issuance upon
the receipt of a Certificate specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of a Portfolio are
redeemed, the Trust shall cause the Transfer Agent to promptly furnish to the
Custodian Written Instruction, specifying:
1. The name of the Portfolio whose Shares were redeemed;
2. The number of Shares redeemed; and
3. The amount to be paid for the Shares redeemed.
(e) Upon receipt from the Transfer Agent of advice setting forth the number of
Shares of a Portfolio 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 out of the moneys specifically allocated to and
held for the account of the Portfolio specified in subparagraph (1) of paragraph
(d) of this Section 8 of the total amount specified in the 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 Trust, the Custodian, unless
otherwise instructed by a Written Instruction shall, upon receipt of advice from
the Trust 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 moneys
specifically allocated to the Trust in such advice for such purpose.
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9. Indebtedness.
(a) The Trust will cause to be delivered to the Custodian by any bank (excluding
the Custodian) from which the Trust 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 Trust against delivery of a
stated amount of collateral. The Trust shall promptly deliver to the Custodian
Written Instruction stating with respect to each such borrowing: (1) the name of
the Portfolio for which the borrowing is to be made; (2) the name of the bank;
(3) the amount and terms of the borrowing, which may be set forth by
incorporating by reference an attached promissory note, duly endorsed by the
Trust, or other loan agreement; (4) the time and date, if known, on which the
loan is to be entered into (the "borrowing date"); (5) the date on which the
loan becomes due and payable; (6) the total amount payable to the Trust for the
separate account of the Portfolio on the borrowing date; (7) 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; (8) whether the Custodian is to deliver such collateral
through the Book-Entry System or the Depository; and (9) a statement that such
loan is in conformance with the 1940 Act and the Trust'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 or Oral
Instructions. 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 Trust from time to time such Securities specifically allocated
to such Portfolio as may be specified in Written or Oral Instructions to
collateralize further any transaction described in this Section 9. The Trust
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 Trust
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.
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10. Persons Having Access to Assets of the Portfolios.
(a) No Trustee, officer, employee or agent of the Trust, and no officer,
director, employee or agent of the investment adviser, shall have physical
access to the assets of the Trust held by the Custodian or be authorized or
permitted to withdraw any investments of the Trust, nor shall the Custodian
deliver any assets of the Trust to any such person. No officer, director,
employee or agent of the Custodian who holds any similar position with the Trust
or the investment adviser shall have access to the assets of the Trust.
(b) The individual employees of the Custodian duly authorized by the Board of
Directors of the Custodian to have access to the assets of the Trust are listed
in the certification annexed hereto as Appendix C. The Custodian shall advise
the Trust of any change in the individuals authorized to have access to the
assets of the Trust by written notice to the Trust accompanied by a certified
copy of the authorizing resolution of the Custodian's Board of Directors
approving such change.
(c) Nothing in this Section 10 shall prohibit any officer, employee or agent of
the Trust, or any officer, director, employee or agent of the investment
adviser, 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 Trust prohibited by paragraph (a) of this Section 10.
11. Concerning the Custodian.
(a) Standard of Conduct. Except as otherwise provided herein, 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 its own negligence or willful
misconduct. The Custodian may, with respect to questions of law, apply for and
obtain the advice and opinion of counsel to the Trust or of its own counsel, at
the expense of the Trust, 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 be liable to the Trust for any loss or damage resulting from
the use of the Book-Entry System or the Depository arising by reason of any
negligence, misfeasance or misconduct on the part of the Custodian or any of its
employees or agents.
(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:
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1. The validity of the issue of any Securities purchased by any Portfolio,
the legality of the purchase thereof, or the propriety of the amount paid
therefor;
2. The legality of the sale of any Securities by any Portfolio, 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 dividend or other
distribution of any Portfolio;
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 any Portfolio until the Custodian actually receives and collects such
money directly or by the final crediting of the account representing the Trust's
interest in the Book-Entry System or the Depository. The Custodian shall
exercise diligence appropriate to first class mutual fund custodians in pursuing
payment on any such instrument, or any dividend, interest or other receivable of
the Trust.
(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 any
Portfolio 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 (a) it shall be
directed to take such action by a Certificate and (b) it shall be assured to its
satisfaction of reimbursement of its costs and expenses in connection with any
such action.
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(f) Appointment of Agents and Sub-Custodians. The Custodian may appoint one or
more banking institutions, including but not limited to banking or other
qualified institutions located in foreign countries, to act as Depository or
Depositories or as Sub-Custodian or as Sub-Custodians of Securities and moneys
at any time owned by any Portfolio, upon terms and conditions specified in a
Certificate. The Custodian shall use reasonable care in selecting a Depository
and/or Sub-Custodian located in a country other than the United States ("Foreign
Sub-Custodian"), and shall oversee the maintenance of any Securities or moneys
of the Trust by any Foreign Sub-Custodian. Any selection of and form of
contract with a Foreign Custodian shall be subject to approval by the Trust that
such selection and contract are consistent with the requirements of Rule 17f-5
(and Rule 17f-4, if applicable) under the 1940 Act, and the Custodian shall
provide the Trust with such information and recommendations as may be reasonably
necessary as a basis for such approval.
(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 Trust and specifically allocated to a Portfolio are such as may
properly be held by the Trust and specifically allocated to such Portfolio under
the provisions of the Declaration of Trust and the Prospectus.
(h) Compensation of the Custodians. The Custodian shall be entitled to receive,
and the Trust agrees to pay to the Custodian, such compensation as may be agreed
upon from time to time between the Custodian and the Trust. The Custodian may
charge against any moneys specifically allocated to a Portfolio such
compensation and any expenses incurred by the Custodian in the performance of
its duties pursuant to such agreement with respect to such Portfolio. The
Custodian shall also be entitled to charge against any money held by it and
specifically allocated to a Portfolio the amount of any loss, damage, liability
or expense incurred with respect to such Portfolio, 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 of any Portfolio.
(i) 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 the required number of officers of the Trust. The Custodian shall
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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 Trust 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 Trust 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 Trust. The Trust agrees that the Custodian
shall incur no liability to the Trust 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.
(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 Trust and by employees of the Securities and Exchange
Commission.
The Custodian shall provide the Trust 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 Trust may reasonably request from time to time.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set forth above and
shall continue for a one year term and thereafter so long as such continuance is
specifically approved at least annually by (i) the Board of Trustees of the
Company or (ii) a vote of a "majority" (as defined in the Investment Company Act
of 1940, as amended) of the Fund's outstanding voting securities, provided that
in either event the continuance is also approved by a majority of the Board of
Trustees who are not "interested persons" (as defined in said Act) of any party
to this Agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval.
(b) Either of the parties hereto may terminate this Agreement with respect to
any Portfolio 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 Trust, it shall
be accompanied by a certified resolution of the Board of Trustees of the Trust,
electing to terminate this Agreement with respect to any Portfolio and
designating a successor custodian or custodians, which shall be a person
qualified to so act under the 1940 Act or undertaking to make such designation
at least 30 days prior to the termination date. In the event such notice is
given by the Custodian, the
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Trust shall, on or before the termination date, deliver to the Custodian a
certified resolution of the Board of Trustees of the Trust, designating a
successor custodian or custodians. In the absence of such designation by the
Trust, the Custodian may designate a successor custodian, which shall be a
person qualified to so act under the ▇▇▇▇ ▇▇▇. If the Trust fails to designate a
successor custodian for any Portfolio, the Trust 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
Systems which cannot be delivered to the Trust) and moneys then owned by such
Portfolio, 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 Trust.
(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 moneys then held by the Custodian and specifically allocated to
the Portfolio or Portfolios specified, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall then be
entitled with respect to such Portfolio or Portfolios and otherwise cooperate in
the transfer of its duties and responsibilities hereunder.
13. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by the Secretary of
the Trust setting forth the names and the signatures of the present Authorized
Persons. The Trust 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 B is a certification signed by the Secretary of
the Trust setting forth the names and the signatures of the present officers of
the Trust. The Trust 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 Trust 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 the officers as set forth in the last delivered certification.
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(c) The Custodian shall provide the Trust and/or its investment manager such
reports on securities and cash positions, transaction fails, aging of
receivables and other relevant data as the Trust or investment manager may
reasonably require and shall reconcile any differences with the records of such
pricing and bookkeeping agent. The Custodian will also timely provide the
Trust's pricing and bookkeeping agent with such information in the Custodian's
possession as the pricing and bookkeeping agent may reasonably require.
(d) 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 ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, or at such other place
as the Custodian may from time to time designate in writing.
(e) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Trust, shall be sufficiently given if addressed to
the Trust and mailed or delivered to it at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: Secretary or at such
other place as the Trust may from time to time designate in writing.
(f) This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement, and as may be permitted or required by the ▇▇▇▇ ▇▇▇.
(g) 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 Trust without the written consent of
the Custodian, or by the Custodian without the written consent of the Trust
authorized or approved by a resolution of the Board of Trustees of the Trust,
and any attempted assignment without such written consent shall be null and
void.
(h) This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
(i) It is expressly agreed to that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents, or employees of the Trust, personally, but bind only the trust property
of the Trust, as provided in the Declaration of Trust of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and signed by an authorized officer of the Trust, acting as such, and
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 individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in its Declaration of Trust.
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(j) 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.
(k) 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunder duly authorized as of the day and year
first above written.
▇▇ ▇▇▇▇▇▇ TRUST FUNDS
BY: /s/
----------------------------------
BOSTON SAFE DEPOSIT AND TRUST COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
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APPENDIX A
I, ▇▇▇▇▇ ▇▇▇▇▇, Secretary of ▇▇ ▇▇▇▇▇▇ Trust Funds, a Massachusetts
business trust (the "Trust"), 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
Trust.
Name
----
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Tai-▇▇▇▇ ▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------- ---------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Secretary
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APPENDIX B - OFFICERS
I, ▇▇▇▇▇ ▇▇▇▇▇, Secretary of ▇▇ ▇▇▇▇▇▇ TRUST FUNDS, a Massachusetts
business trust (the "Trust"), do hereby certify that:
The following individuals serve in the following positions with the
Trust and each individual has been duly elected or appointed to each such
position and qualified therefor in conformity with the Trust's Declaration of
Trust and the signatures set forth opposite their respective names are their
true and correct signatures:
Name Position Signature
---- -------- ---------
F. ▇▇▇▇▇ ▇▇▇▇▇▇ Chairman /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇ President /s/ ▇▇▇▇▇ ▇. ▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇ Senior Vice President
Secretary and Treasurer /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Senior Vice President /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇ Senior Vice President /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Tai-▇▇▇▇ ▇▇▇▇ Assistant Treasurer /s/ Tai-▇▇▇▇ ▇▇▇▇
-------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Assistant Secretary /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇, Secretary
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