EXHIBIT NO. 99.8(a)
CUSTODIAN CONTRACT
Between
MFS INCOME & OPPORTUNITY 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................................... 2
2.3 Registration of Securities............................... 5
2.4 Bank Accounts............................................ 5
2.5 Payments for Shares...................................... 6
2.6 Investment and Availability of Federal Funds............. 6
2.7 Collection of Income..................................... 6
2.8 Payment of Trust Monies.................................. 7
2.9 Liability for Payment in Advance of Receipt of
Securities Purchased................................... 8
2.10 Appointment of Agents.................................... 9
2.11 Deposit of Trust Assets in Securities System............. 9
2.11A Trust Assets Held in the Custodian's Direct Paper System. 11
2.12 Segregated Account....................................... 12
2.13 Ownership Certificates for Tax Purposes.................. 13
2.14 Proxies.................................................. 13
2.15 Communications Relating to Trust Portfolio Securities.... 13
2.16 Reports to Trust by Independent Public Accountants....... 14
3. Duties of the Custodian with Respect to Property of the Trust
Held Outside the United States................................... 14
3.1 Appointment of Chase as Subcustodian..................... 14
3.2 Standard of Care; Liability.............................. 14
3.3 Trust's Responsibility for Rules and Regulations......... 15
4. Payments for Repurchases or Redemptions of Shares of the Trust..... 15
5. Proper Instructions................................................ 16
6. Actions Permitted Without Express Authority........................ 16
7. Evidence of Authority.............................................. 16
8. Duties of Custodian With Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.................... 17
TABLE OF CONTENTS (CONTINUED)
PAGE
9. Records............................................................ 17
10. Opinion of Trust Independent Accountants........................... 18
11. Compensation of Custodian.......................................... 18
12. Responsibility of Custodian........................................ 18
13. Effective Period, Termination and Amendment........................ 19
14. Successor Custodian................................................ 20
15. Interpretive and Additional Provisions............................. 21
16. Massachusetts Law to Apply......................................... 22
17. Prior Contracts.................................................... 22
18. Delegation of Certain Custodian Duties to MFS...................... 22
CUSTODIAN CONTRACT
This Contract between MFS Income & Opportunity 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",
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 its 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 new or
treasury 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
5), the Custodian shall from time to time employ one or more sub-custodians, 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 2.11 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 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 2.11.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 2.11 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;
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 2.10
or into the name or nominee name of any subcustodian appointed pursuant to
Article l; 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, 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. 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 Commission and/or any Contract Market, or
any similar organization or organizations, regarding account deposits in
connection with transactions by the Trust;
14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for the Trust, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may be described
from time to time the Trust's currently effective prospectus and statement of
additional information ("prospectus"), in satisfaction of requests by holders of
Shares for repurchase or redemption; and
15) 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 purpose to be a proper corporate
purpose, 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 2.10 or in the name or nominee name of any
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.
2.5. Payments for Shares. The Custodian shall receive from the distributor
for the Trust's Shares or from the Transfer Agent of the Trust and deposit into
the Trust's account such payments as are received for Shares of the Trust issued
or sold from time to time by the Trust. The Custodian will provide timely
notification to the Trust and the Transfer Agent of any receipt by it of
payments for Shares of the Trust.
2.6. 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.
2.7. Collection of Income. The Custodian shall collect on a timely basis all
income and other payments with respect to registered domestic 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 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.
2.8. 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 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 2.11 hereof; (c) in the case
of a purchase involving the Direct Paper System, in accordance with the
conditions set forth in Section 2.11A; 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 redemption or repurchase of Shares issued by the Trust as
set forth in Article 4 hereof;
4) 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, 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;
5) For the payment of any dividends declared pursuant to the governing
documents of the Trust;
6) For payment of the amount of dividends received in respect of
domestic securities sold short;
7) 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.
2.9. 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 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.
2.10. 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.
2.11 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
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 records of the Custodian to reflect such payment and
transfer for the account of the Trust. The Custodian shall transfer domestic
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, 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 10 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.
2.11A. Trust 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 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 Portfolio;
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;
2.12. 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 2.11 hereof, (i) in accordance with the provisions
of any 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.
2.13. 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.
2.14. Proxies. The Custodian shall, with respect to the domestic securities
held hereunder, cause to be promptly executed by the registered holder of such
domestic securities, if the 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.
2.15. 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
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 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.
2.16. 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, which 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.
3.1. Appointment of Chase as Subcustodian. The Custodian is authorized and
instructed 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 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. Payments for Repurchases or Redemptions of Shares of the Trust. From
such funds as may be available for the purpose but subject to the limitations of
the Declaration of Trust and any applicable votes of the Board of Trustees of
the Trust pursuant thereto, the Custodian shall, upon receipt of instructions
from the Transfer Agent, make funds available for payment to holders of Shares
who have delivered to the Transfer Agent a request for redemption or repurchase
of their Shares. In connection with the redemption or repurchase of Shares of
the Trust, the Custodian is authorized upon receipt of instructions from the
Transfer Agent to wire funds to or through a commercial bank designated by the
redeeming shareholders. In connection with the redemption or repurchase of
Shares of the Trust, the Custodian shall honor checks drawn on the Custodian by
a holder of Shares, which checks have been furnished by the Trust to the holder
of Shares, when presented to the Custodian in accordance with such procedures
and controls as are mutually agreed upon from time to time between the Trust and
the Custodian.
5. 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 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.
6. 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.
7. Evidence of Authority. The Custodian shall be protected in acting upon
any instructions, notice, request, consent, 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.
8. 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
times described from time to time in the Trust's currently effective prospectus.
9. 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.
10. 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-lA, and Form N-SAR or other annual reports to the Securities
and Exchange Commission and with respect to any other requirements of such
Commission.
11. 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.
12. 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, but 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. Notwithstanding the
foregoing, the responsibility of the Custodian with respect to redemptions
effected by check shall be in accordance with a separate agreement entered into
between the Custodian and the Trust.
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.
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 an 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.
13. 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 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 2.11 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 2.11.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
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.
14. 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 domestic 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 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.
15. 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 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.
16. 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.
17. 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.
18. Delegation of Certain Custodian Duties to MFS
The Custodian may delegate to 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 and from the
Trust on such terms as the Custodian and the Trust shall agree. MFS assumes
responsibility for all duties delegate to it by the Custodian pursuant to this
Section 18, 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 18.
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 6th day of May, 1991.
ATTEST MFS INCOME & OPPORTUNITY TRUST
A. ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ATTEST STATE STREET BANK & TRUST COMPANY
ILLEGIBLE By: ILLEGIBLE
(Illegible), Assistant Secretary (Illegible), Vice President