EXHIBIT NO. 99(j)(1)
AMENDED AND RESTATED CUSTODIAN CONTRACT
Between
MFS SPECIAL VALUE TRUST
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be Held By It 1
2. Duties of the Custodian with Respect to Property of the Trust
Held by the Custodian in the United States 2
2.1. Holding Securities 2
2.2. Delivery of Securities 3
2.3. Registration of Securities 7
2.4. Bank Accounts 8
2.5. Investment and Availability of Federal Funds 9
2.6. Collection of Income 9
2.7. Payment of Trust Monies 10
2.8. Liability for Payment in Advance of
Receipt of Securities Purchased 12
2.9. Appointment of Agents 13
2.10 Deposit of Trust Assets in Securities System 13
2.10A Trust Assets Held in the Custodian's
Direct Paper System 17
2.11. Segregated Account 18
2.12. Ownership Certificates for Tax Purposes 20
2.13. Proxies 20
2.14. Communications Relating to Trust
Portfolio Securities 20
2.15. Reports to Trust by Independent Public
Accountants 21
3. Duties of the Custodian with Respect to Property of
the Trust held Outside of the United States 21
3.1 Appointment of Chase as Subcustodian 22
3.2 Standard of Care; Liability 22
3.3 Trust's Responsibility for Rules and Regulations 23
4. Proper Instructions 23
5. Actions Permitted Without Express Authority 24
6. Evidence Of Authority 24
7. Duties Of Custodian With Respect To The Books Of Account
and Calculation Of Net Asset Value and Net Income 25
8. Records 26
9. Opinion of Trust's Independent Accountants 26
10. Compensation of ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Responsibility of ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Effective Period, Termination and Amendment 28
13. Successor Custodian 30
14. Interpretive and Additional Provisions 31
15. Massachusetts Law to Apply 32
16. Prior Contracts 32
17. Delegation of Certain Custodian Duties to MFS 32
CUSTODIAN CONTRACT
This Contract between MFS Special Value Trust, a business trust
organized and existing under the laws of Massachusetts, having its principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
hereinafter called the "Trust", and State Street Bank and Trust Company, a
Massachusetts trust company, having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, hereinafter called the
"Custodian" amends and restates the Custodian Contract between the Trust and the
Custodian dated as of November 10, 1989.
WITNESSETH: That in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It.
The Trust hereby employs the Custodian as the custodian of the assets
pursuant to the provisions of the Declaration of Trust including securities and
cash it desires to be held within the United States (collectively "domestic
securities") and securities and cash it desires to be held outside the United
States (collectively "foreign securities"), subject to the terms of Article 3
hereof. The Trust agrees to deliver to the Custodian all securities and cash
owned by it, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the Trust
from time to time, and the cash consideration received by it for such shares of
beneficial interest ("Shares") of the Trust as may
be issued or sold from time to time. The Custodian shall not be responsible for
any property of the Trust held or received by the Trust and not delivered to the
Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Article
4), the Custodian shall from time to time employ one or more subcustodians, but
only in accordance with an applicable vote by the Board of Trustees of the
Trust, and provided that, except as expressly provided in Article 3 hereof, the
Custodian shall have no more or less responsibility or liability to the Trust on
account of any actions or omissions of any subcustodian so employed than any
such subcustodian has to the Custodian.
2. Duties of the Custodian with Respect to Property of the Trust Held
By the Custodian in the United States.
The provisions of this Article 2 shall apply to the duties of the
Custodian as they relate to domestic securities, held in the United States.
2.1. Holding Securities. The Custodian shall hold and physically
segregate for the account of the Trust all non-cash property,
including all domestic securities owned by the Trust to be held in
the United States, other than (a) securities which are maintained
pursuant to Section 2.10 in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the
U.S. Department of the Treasury, collectively referred to herein as
a "Securities System"; and (b) commercial paper of an issuer for
which State Street Bank and Trust Company acts as issuing and paying
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agent ("Direct Paper") which is deposited and/or maintained in State
Street Bank and Trust Company's Direct Paper Book-Entry System ("Direct
Paper System") pursuant to Section 2.10.A.
2.2. Delivery of Securities. The Custodian shall release and deliver
securities owned by the Trust held by the Custodian or in a Securities
System account of the Custodian or in the Direct Paper System only upon
receipt of Proper Instructions, which may be continuing instructions
when deemed appropriate by the parties, and only in the following
cases:
1) Upon sale of such securities for the
account of the Trust and receipt of payment therefor;
2) Upon the receipt of payment in connection
with any repurchase agreement related to such
securities entered into by the Trust;
3) In the case of a sale effected through a
Securities System, in accordance with the provisions
of Section 2.10 hereof;
4) To the depository agent in connection
with tender or other similar offers for portfolio
securities of the Trust;
5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the cash
or other consideration is to be delivered to the
Custodian;
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6) To the issuer thereof, or its agent, for transfer
into the name of the Trust or into the name of any nominee
or nominees of the Custodian or into the name or nominee
name of any agent appointed pursuant to Section 2.9 or
into the name or nominee name of any subcustodian
appointed pursuant to Article 1; or for exchange for a
different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of
units; provided that, in any such case, the new securities
are to be delivered to the Custodian;
7) Upon the sale of such securities for the account
of the Trust, to the broker or its clearing agent, against
a receipt, for examination in accordance with "street
delivery" custom; provided that in any such case, the
Custodian shall have no responsibility or liability for
any loss arising from the delivery of such securities
prior to receiving payment for such securities except as
may arise from the Custodian's own negligence or willful
misconduct;
8) For exchange or conversion pursuant to
any plan of merger, consolidation,
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recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant
to provisions for conversion contained in such securities,
or pursuant to any deposit agreement; provided that, in
any such case, the new securities and cash, if any, are to
be delivered to the Custodian;
9) In the case of warrants, rights or similar
securities, the surrender thereof in the exercise of such
warrants, rights or similar securities or the surrender of
interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the
Custodian;
10) For delivery in connection with any loans of
securities made by the Trust, 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, except that
in connection with any loans for which collateral is to be
credited to the Custodian's account in the book-entry
system authorized by the U.S.
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Department of the Treasury, the Custodian will not be held
liable or responsible for the delivery of securities owned
by the Trust prior to the receipt of such collateral;
11) For delivery as security in connection with any
borrowings by the Trust requiring a pledge of assets by
the Trust, but only against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of
any agreement among the Trust, the Custodian and a
broker-dealer registered under the Securities Exchange Act
of 1934 (the "Exchange Act") and a member of The National
Association of Securities Dealers, Inc. ("NASD"), relating
to compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange, or of any similar organization or organizations,
regarding escrow or other arrangements in connection with
transactions by the Trust;
13) For delivery in accordance with the provisions of
any agreement among the Trust, the Custodian, and a
Futures Commission Merchant registered under the Commodity
Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading
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Commission and/or any Contract Market, or any similar
organization or organizations, regarding account deposits
in connection with transactions by the Trust; and
14) For any other proper corporate purpose, but only
upon receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of Trustees or
of the Executive Committee signed by an officer of the
Trust and certified by the Secretary or an Assistant
Secretary, setting forth the purpose for which such
delivery is to be made, declaring such purposes to be
proper corporate purposes, and naming the person or
persons to whom delivery of such securities shall be made.
2.3. Registration of Securities. Domestic securities held by the
Custodian (other than bearer securities) in the United States shall
be registered in the name of the Trust or in the name of any nominee
of the Trust or of any nominee of the Custodian which nominee shall
be assigned exclusively to the Trust, unless the Trust has
authorized in writing the appointment of a nominee to be used in
common with other registered investment companies having the same
investment adviser as the Trust, or in the name or nominee name of
any agent appointed pursuant to Section 2.9 or in the name or
nominee name of any
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subcustodian appointed pursuant to Article 1. All domestic securities
accepted by the Custodian on behalf of the Trust under the terms of
this Contract shall be in "street name" or other good delivery form.
2.4. Bank Accounts. The Custodian shall open and maintain a separate
bank account or accounts (the "Trust's Account or Accounts") in the
name of the Trust, subject only to draft or order by the Custodian
acting pursuant to the terms of this Contract, and shall hold in
such Account or Accounts, subject to the provisions hereof, all cash
received by it from or for the Account of the Trust, other than cash
maintained by the Trust in a bank Account established and used in
accordance with Rule 17f-3 under the Investment Company Act of
1940. Funds held by the Custodian for the Trust may be deposited by
it to its credit as Custodian in the Banking Department of the
Custodian or in such other banks or trust companies as it may in its
discretion deem necessary or desirable; provided, however, that
every such bank or trust company shall be qualified to act as a
custodian under the Investment Company Act of 1940 and that each
such bank or trust company and the funds to be deposited with each
such bank or trust company shall be approved by vote of a majority
of the Board of Trustees of the Trust. Such funds shall be
deposited by the Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity.
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2.5. Investment and Availability of Federal Funds. Upon mutual agreement
between the Trust and the Custodian, the Custodian shall, upon the
receipt of Proper Instructions,
1) invest in such instruments as may be set
forth in such instruments as may be set forth in such
instructions on the same day as received all federal
funds received after a time agreed upon between the
Custodian and the Trust; and
2) make federal funds available to the Trust
as of specified times agreed upon from time to time
by the Trust and the Custodian in the amount of
checks received in payment for Shares of the Trust
which are deposited into the Trust's account.
2.6. Collection of Income. The Custodian shall collect on a timely basis
all income and other payments with respect to registered domestics
securities held hereunder to which the Trust shall be entitled
either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with
respect to bearer domestic securities if, on the date of payment by
the issuer, such domestic securities are held by the Custodian or
agent thereof and shall credit such income, as collected, to the
Trust's custodian Account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for payment all
coupons and
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other income items requiring presentation as and when they become due
and shall collect interest when due on domestic securities held
hereunder. Income due the Trust on domestic securities loaned pursuant
to the provisions of Section 2.2 (10) shall be the responsibility of
the Trust. The Custodian will have no duty or responsibility in
connection therewith, other than to provide the Trust with such
information or data as may be necessary to assist the Trust in
arranging for the timely delivery to the Custodian of the income to
which the Trust is properly entitled.
2.7. Payment of Trust Monies. Upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out monies of the Trust in the following cases
only:
1) Upon the purchase of domestic securities, for the
account of the Trust but only (a) against the delivery of
such securities to the Custodian (or any bank, banking
firm or trust company doing business in the United States
or abroad which is qualified under the Investment Company
Act of 1940, as amended, to act as a custodian and has
been designated by the Custodian as its agent for this
purpose) registered in the name of the Trust or in the
name of a nominee of the Custodian referred to in Section
2.3 hereof or in
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proper form for transfer; (b) in the case of a purchase
effected through a Securities System, in accordance with
the conditions set forth in Section 2.10 hereof; (c) in
the case of a purchase involving the Direct Paper System,
in accordance with the conditions set forth in Section
2.10A; or (d) in the case of repurchase agreements entered
into between the Trust and the Custodian, or another bank,
or a broker-dealer which is a member of NASD,
(i) against delivery of the securities
either in certificate form or through an entry crediting
the Custodian's account at the Federal Reserve Bank with
such securities or
(ii) against delivery of the receipt
evidencing purchase by the Trust of securities owned by
the Custodian along with written evidence of the agreement
by the Custodian to repurchase such securities from the
Trust;
2) In connection with conversion, exchange
or surrender of domestic securities owned by the Trust
as set forth in Section 2.2 hereof;
3) For the payment of any expense or
liability incurred by the Trust, including but not
limited to the following payments for the account of
the Trust: interest, taxes,
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management, accounting, transfer agent and legal fees, and
operating expenses of the Trust whether or not such
expenses are to be in whole or part capitalized or treated
as deferred expenses;
4) For the payment of any dividends declared
pursuant to the governing documents of the Trust;
5) For payment of the amount of dividends
received in respect of domestic securities sold short;
6) For any other proper purpose, but only upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of Trustees or
of the Executive Committee of the Trust signed by an
officer of the Trust and certified by its Secretary or an
Assistant Secretary, setting forth the purpose for which
such payment is to be made, declaring such purpose to be a
proper purpose, and naming the person or persons to whom
such payment is to be made.
2.8. Liability for Payment in Advance of Receipt of Securities Purchased. In
any and every case where payment for purchase of domestic securities
for the account of the Trust is made by the Custodian in advance of
receipt of the securities purchased in the absence of specific
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written instructions from the Trust to so pay in advance, the Custodian
shall be absolutely liable to the Trust for such securities to the same
extent as if the securities had been received by the Custodian, except
that in the case of repurchase agreements entered into by the Trust
with a bank which is a member of the Federal Reserve System, the
Custodian may transfer funds to the account of such bank prior to the
receipt of written evidence that the securities subject to such
repurchase agreement have been transferred by book-entry into a
segregated non-proprietary account of the Custodian maintained with the
Federal Reserve Bank of Boston or of the safekeeping receipt, provided
that such securities have in fact been so transferred by book-entry.
2.9. Appointment of Agents. The Custodian may at any time or times in
its discretion appoint (and may at any time remove) any other bank
or trust company which is itself qualified under the Investment
Company Act of 1940, as amended, to act as a custodian, as its agent
to carry out such of the provisions of this Article 2 as the
Custodian may from time to time direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
2.10 Deposit of Trust Assets in Securities Systems. The Custodian may
deposit and/or maintain domestic securities owned by the Trust in a
clearing agency registered with the Securities and Exchange Commission
under Section 17A
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of the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies, collectively
referred to herein as "Securities System" in accordance with applicable
Federal Reserve Board and Securities and Exchange Commission rules and
regulations, if any, and subject to the following provisions:
1) The Custodian may keep domestic securities of the
Trust in a Securities System provided that such securities
are represented in an account ("Custodian's Account") of
the Custodian in the Securities System which shall not
include any assets of the Custodian other than assets held
as a fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to
domestic securities of the Trust which are maintained in a
Securities System shall identify by book-entry those
securities belonging to the Trust;
3) The Custodian shall pay for domestic securities
purchased for the account of the Trust upon (i) receipt of
advice from the Securities System that such securities
have been transferred to the Custodian's Account, and (ii)
the making of an entry on the
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records of the Custodian to reflect such payment and
transfer for the account of the Trust. The Custodian shall
transfer securities sold for the account of the Trust upon
(i) receipt of advice from the Securities System that
payment for such securities has been transferred to the
Custodian's Account, and (ii) the making of an entry on
the records of the Custodian to reflect such transfer and
payment for the account of the Trust. Copies of all
advices from the Securities System of transfers of
domestic securities for the account of the Trust shall
identify the Trust, be maintained for the Trust by the
Custodian and be provided to the Trust at its request.
Upon request, the Custodian shall furnish the Trust
confirmation of each transfer to or from the account of
the Trust in the form of a written advice or notice and
shall furnish to the Trust copies of daily transaction
sheets reflecting each day's transactions in the
Securities System for the account of the Trust.
4) The Custodian shall provide the Trust
with any report obtained by the Custodian on the
Securities System's accounting system,
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internal accounting control and procedures for
safeguarding domestic securities deposited in the
Securities System;
5) The Custodian shall have received the
initial or annual certificate, as the case may be,
required by Article 12 hereof;
6) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable to the
Trust for any loss or damage to the Trust resulting from
use of the Securities System by reason of any negligence,
misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees or from failure
of the Custodian or any such agent to enforce effectively
such rights as it may have against the Securities System;
at the election of the Trust, it shall be entitled to be
subrogated to the rights of the Custodian with respect to
any claim against the Securities System or any other
person which the Custodian may have as a consequence of
any such loss or damage if and to the extent that the
Trust has not been made whole for any such loss or damage.
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2.10.A Fund Assets Held in the Custodian's Direct Paper System. The Custodian
may deposit and/or maintain domestic securities owned by the Trust in
the Direct Paper System subject to the following provisions:
1) No transaction relating to domestic securities in
the Direct Paper System will be effected in the
absence of Proper Instructions;
2) The Custodian may keep domestic securities of the
Trust in the Direct Paper System only if such
securities are represented in an account of the
Custodian in the Direct Paper System which shall
not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise
for customers;
3) The records of the Custodian with respect to domestic
securities of the Trust which are maintained in the
Direct Paper System shall identify by book-entry
those securities belonging to the Trust;
4) The Custodian shall furnish the Trust confirmation of
each transfer of Direct Paper to or from the account
of the Trust, in the form of a written advice or
notice on the next business day following such
transfer and shall furnish to the Trust copies of
daily
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transaction sheets reflecting each day's
transaction in the Direct Paper System for the
account of the Trust;
5) The Custodian shall pay for domestic securities
purchased for the account of the Trust upon the
making of an entry on the records of the Custodian
to reflect such payment and transfer of securities
to the account of the Trust. The Custodian shall
transfer securities sold for the account of the
Trust upon the making of an entry on the records
of the Custodian to reflect such transfer and
receipt of payment for the account of the Trust;
6) The Custodian shall provide the Trust with any report
on the system of internal accounting control for the
Direct Paper System that the Custodian receives and
as the Trust may reasonably request from time to
time;
2.11 Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts
for and on behalf of the Trust, into which account or accounts may be
transferred cash and/or domestic securities, including securities
maintained in an account by the Custodian pursuant to Section 2.10
hereof, (i) in accordance with the provisions of any
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agreement among the Trust, the Custodian and a broker-dealer registered
under the Exchange Act and a member of the NASD (or any futures
commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange (or the
Commodity Futures Trading Commission or any registered contract
market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Trust, (ii) for purposes of segregating cash or government securities
in connection with options purchased, sold or written by the Trust or
commodity futures contracts or options thereon purchased or sold by the
Trust, (iii) for the purpose of compliance by the Trust with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange
Commission relating to the maintenance of segregated accounts by
registered investment companies and (iv) for other proper corporate
purposes, but only, in the case of clause (iv), upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of
the Board of Trustees or of the Executive Committee signed by an
officer of the Trust and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate purposes.
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2.12. Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other
payments with respect to domestic securities of the Trust held by it
and in connection with transfers of domestic securities.
2.13. Proxies. The Custodian shall, with respect to the domestic
securities held hereunder, cause to be promptly executed by the
registered holder of such securities, if the domestic securities are
registered otherwise than in the name of the Trust or a nominee of
the Trust, all proxies, without indication of the manner in which
such proxies are to be voted, and shall promptly deliver to the
Trust such proxies, all proxy soliciting materials and all notices
relating to such securities.
2.14. Communications Relating to Trust Portfolio Securities. The
Custodian shall transmit promptly to the Trust all written
information (including, without limitation, pendency of calls and
maturities of domestic securities and expirations of rights in
connection therewith and notices of exercise of call and put options
written by the Trust and the maturity of futures contracts purchased
or sold by the Trust) received by the Custodian from issuers of the
domestic securities being held for the Trust. With respect to
tender or exchange offers, the Custodian shall transmit promptly to
the Trust all written information received by the Custodian from
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issuers of the domestic securities whose tender or exchange is sought
and from the party (or his agents) making the tender or exchange offer.
If the Trust desires to take action with respect to any tender offer,
exchange offer or any other similar transaction, the Trust shall notify
the Custodian at least three business days prior to the date on which
the Custodian is to take such action.
2.15 Reports to Trust by Independent Public Accountants.
The Custodian shall provide the Trust, at such times as the Trust may
reasonably require, with reports by independent public accountants on
the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures
contracts, including securities deposited and/or maintained in a
Securities System, relating to the services provided by the Custodian
under this Contract; such reports, shall be of sufficient scope and in
sufficient detail, as may reasonably be required by the Trust, to
provide reasonable assurance that any material inadequacies would be
disclosed by such examination, and, if there are no such inadequacies,
shall so state.
3. Duties of the Custodian with Respect to Property of the Trust Held
Outside of the United States.
The provisions of this Article 3 shall apply to the duties of the
Custodian as they relate to foreign securities held outside the United States.
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3.1 Appointment of Chase as Subcustodian. The Custodian is authorized
and instructed to by the Trust to employ Chase Manhattan Bank N.A.
("Chase") as subcustodian for the Trust's foreign securities
(including cash incidental to transactions in such securities) on
the terms and conditions set forth in the Subcustody Contract
between the Custodian and Chase which is attached hereto as Exhibit
A (the "Subcustody Contract"). The Custodian acknowledges that it
has entered into the Subcustody Contract and hereby agrees to
provide such services to the Trust and in accordance with such
Subcustody Contract as necessary for foreign custody services to be
provided pursuant thereto.
3.2. Standard of Care; Liability. Notwithstanding anything to the
contrary in this Contract, the Custodian shall not be liable to the
Trust for any loss, damage, cost, expense, liability or claim
arising out of or in connection with the maintenance of custody of
the Trust's foreign securities by Chase or by any other banking
institution or securities depository employed pursuant to the terms
of the Subcustody Contract, except that the Custodian shall be
liable for any such loss, damage, cost, expense, liability or claim
directly resulting from the failure of the Custodian to exercise
reasonable care in the performance of its duties hereunder. At the
election of the Trust, the Trust shall be entitled to be subrogated
to the rights of the Custodian under the Subcustody
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contract with respect to any claim arising hereunder against Chase or
any other banking institution or securities depository employed by
Chase if and to the extent that the Trust has not been made whole
therefor.
3.3 Trust's Responsibility for Rules and Regulations. As between the
Custodian and the Trust, the Trust shall be solely responsible to
assure that the maintenance of foreign securities and cash pursuant
to the terms of the Subcustody Contract comply with all applicable
rules, regulations, interpretations and orders of the Securities and
Exchange Commission, and the Custodian assumes no responsibility and
makes no representations as to such compliance.
4. Proper Instructions. Proper Instructions as used throughout this Contract
means a writing signed or initialed by one or more person or persons as the
Board of Trustees shall have from time to time authorized. Each such writing
shall set forth the specific transaction or type of transaction involved,
including a specific statement of the purpose for which such action is
requested. Oral instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. The Trust shall
cause all oral instructions to be confirmed in writing. Upon receipt of a
certificate of the Secretary or an Assistant Secretary as to the authorization
by the Board of Trustees of the Trust accompanied by a detailed description of
procedures approved by the Board of
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Trustees, Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Board of
Trustees and the Custodian are satisfied that such procedures afford adequate
safeguards for the Trust's assets.
5. Actions Permitted without Express Authority. The Custodian may in
its discretion, without express authority from the Trust:
1)make payments to itself or others for minor expenses of
handling securities or other similar items relating to its
duties under this Contract, provided that all such payments
shall be accounted for to the Trust;
2)surrender securities in temporary form for securities in
definitive form;
3)endorse for collection, in the name of the Trust, checks,
drafts and other negotiable instruments; and
4)in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property of
the Trust except as otherwise directed by the Board of Trustees
of the Trust.
6. Evidence of Authority. The Custodian shall be protected in acting
upon any instructions, notice, request, consent,
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certificate or other instrument or paper believed by it to be genuine and to
have been properly executed by or on behalf of the Trust. The Custodian may
receive and accept a certified copy of a vote of the Board of Trustees of the
Trust as conclusive evidence (a) of the authority of any person to act in
accordance with such vote or (b) of any determination or of any action by the
Board of Trustees pursuant to the Declaration of Trust as described in such
vote, and such vote may be considered as in full force and effect until receipt
by the Custodian of written notice to the contrary.
7. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees of the Trust to keep
the books of account of the Trust and/or compute the net asset value per share
of the outstanding shares of the Trust or, if directed in writing to do so by
the Trust, shall itself keep such books of account and/or compute such net asset
value per share. If so directed, the Custodian shall also calculate daily the
net income of the Trust as described in the Trust's currently effective
prospectus and shall advise the Trust and the Transfer Agent daily of the total
amounts of such net income and, if instructed in writing by an officer of the
Trust to do so, shall advise the Transfer Agent periodically of the division of
such net income among its various components. The calculations of the net asset
value per share and the daily income of the Trust shall be made at the time or
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times described from time to time in the Trust's currently effective
prospectus.
8. Records.
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Trust. All such records shall be
the property of the Trust and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Trust and employees and agents of the Securities and
Exchange Commission. The Custodian shall, at the Trust's request, supply the
Trust with a tabulation of securities owned by the Trust and held by the
Custodian and shall, when requested to do so by the Trust and for such
compensation as shall be agreed upon between the Trust and the Custodian,
include certificate numbers in such tabulations.
9. Opinion of Trust's Independent Accountant
The Custodian shall take all reasonable action, as the Trust may from
time to time request, to obtain from year to year favorable opinions from the
Trust's independent accountants with respect to its activities hereunder in
connection with the preparation of the Trust's Form N-2 and amendments thereto,
and Form N-SAR or other annual reports to the Securities and Exchange
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Commission and with respect to any other requirements of such Commission.
10. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Trust and the Custodian.
11. Responsibility of Custodian.
So long as and to the extent that it is in the exercise of reasonable
care, 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 Contract and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Contract and shall be kept indemnified by the Trust for
any action taken or omitted by it in the proper execution of instructions from
the Trust. It shall be entitled to rely on and may act upon advice of counsel
for the Trust on all matters and shall be without liability for any action
reasonably taken or omitted pursuant to such advice.
The Custodian shall be liable for the acts and omissions of Chase
appointed as its subcustodian pursuant to the provision of Article 3 to the
extent set forth in Sections 3.2 and 3.3 hereof.
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The Trust agrees to indemnify and hold harmless the Custodian and its
nominee from and against all taxes, charges, expenses, assessments, claims and
liabilities (including counsel fees) incurred or assessed against it or its
nominee in connection with the performance of this Contract, except such as may
arise from it or its nominee's own negligent action, negligent failure to act or
willful misconduct. The Custodian is authorized to charge any account of the
Trust for such items and its fees. To secure any such authorized charges and any
advances of cash or securities made by the Custodian to or for the benefit of
the Trust for any purpose which results in the Trust incurring and overdraft at
the end of any business day or for extraordinary or emergency purposes during
any business day, the Trust hereby grants to the Custodian a security interest
in and pledges to the Custodian securities held for it by the Custodian, in an
amount not to exceed five percent of the Trust's gross assets, the specific
securities to be designated in writing from time to time by the Trust or its
investment adviser (the "Pledged Securities"). Should the Trust fail to repay
promptly any advances of cash or securities, the Custodian shall be entitled to
use available cash and to dispose of the Pledged Securities as is necessary to
repay any such advances.
12. Effective Period. Termination and Amendment.
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either
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party by an instrument in writing delivered or mailed, postage prepaid to the
other party, such termination to take effect not sooner than thirty (30) days
after the date of such delivery or mailing; provided, however that the Custodian
shall not act under Section 2.10 hereof in the absence of receipt of an initial
certificate of the Secretary or an Assistant Secretary that the Board of
Trustees of the Trust has approved the initial use of a particular Securities
System and the receipt of an annual certificate of the Secretary or an Assistant
Secretary that the Board of Trustees has reviewed the use by the Trust of such
Securities System, as required in each case by Rule 17f-4 under the Investment
Company Act of 1940, as amended and that the Custodian shall not act under
Section 2.10.A hereof in the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board of Trustees has approved the
initial use of the Direct Paper System and the receipt of an annual certificate
of the Secretary or an Assistant Secretary that the board of Trustees has
reviewed the use by the Trust of the Direct Paper System; provided further,
however, that the Trust shall not amend or terminate this Contract in
contravention of any applicable federal or state regulations, or any provision
of the Declaration of Trust, and (b) that the Trust may at any time by action of
its Board of Trustees (i) substitute another bank or trust company for the
Custodian by giving notice as described above to the Custodian, or (ii)
immediately terminate this Contract in the event of the appointment of a
conservator or receiver for the Custodian or upon the happening of a like event
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at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Contract, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements.
13. Successor Custodian.
If a successor custodian shall be appointed by the Board of Trustees of
the Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Trust's securities held in a
Securities System.
If no such successor custodian shall be appointed, the Custodian shall,
in like manner, upon receipt of a certified copy of a vote of the Board of
Trustees of the Trust, deliver at the office of the Custodian and transfer such
securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company Act of 1940, of
its own selection, having an aggregate capital, surplus, and undivided profits,
as shown by its last published
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report, of not less than $25,000,000, all securities, funds and other properties
held by the Custodian and all instruments held by the Custodian relative thereto
and all other property held by it under this Contract and to transfer to an
account of such successor custodian all of the Trust's securities held in any
Securities System. Thereafter, such bank or trust company shall be the successor
of the Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of the vote referred to or of
the Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
14. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and
the Trust may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the
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Declaration of Trust of the Trust. No interpretive or additional provisions made
as provided in the preceding sentence shall be deemed to be an amendment of this
Contract.
15. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
16. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, the
existing custodian contracts between the Trust and the Custodian. Any reference
to the custodian contract between the Trust and the Custodian in documents
executed prior to the date hereof shall be deemed to refer to this Contract.
17. Delegation of Certain Custodian Duties to MFS
The Custodian may delegate to Massachusetts Financial Services Company
("MFS") the performance of any or all of its duties hereunder relating to (i)
accounting for investments in currency and for financial instruments (including,
without limitation, options contracts, futures contracts, options on futures
contracts, options on foreign currency and forward foreign currency exchange
contracts) and (ii) federal and state regulatory compliance. The Custodian shall
compensate MFS for the performance of such duties at such fee or fees as MFS
shall determine to be equal to MFS's cost for performing such duties (the "MFS
Fees"). Following its payment of the MFS Fees to MFS, the Custodian shall
recover the amount of the MFS Fees from the Trust on such terms as the Custodian
and the Trust shall agree.
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MFS assumes responsibility for all duties delegated to it by the Custodian
pursuant to this Section 17, and the Custodian may rely on MFS for the accuracy
and correctness of the accounting information provided by MFS to the Custodian
pursuant to this Section 17.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 29th day of December,1989.
ATTEST MFS SPECIAL VALUE TRUST
▇▇▇▇▇ ▇. ▇▇▇▇▇ By A. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇
ATTEST STATE STREET BANK AND TRUST COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇ By: ILLEGIBLE
▇▇▇ ▇▇▇▇▇▇▇▇ (Illegible)
Assistant Secretary Vice President
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