Exhibit (g)(2)
CUSTODIAN AGREEMENT
MEMORIAL FUNDS
THIS AGREEMENT made as of this 9th day of March, 1998, between,
Memorial Funds, a Delaware Massachusetts business trust, with its principal
place of business at Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
called the "TrustFund"), and BankBoston, N.A., a national banking association
with its principal place of business in Boston, Massachusetts (hereinafter
called the "Custodian").
WHEREAS, the Trust Fund desires that its the Ssecurities and cash of
certain of its separate series shall be hereafter held and administered by
Custodian as the Trust's Fund's agent pursuant to the terms of this Agreement;
and
WHEREAS, the Custodian provides services in the ordinary course of its
business which will meet the Trust's Fund's needs as provided for hereinafter;
NOW, THEREFORE, in consideration of the mutual promises herein made,
the Trust Fund and the Custodian agree as follows:
SECTION 1. DEFINITIONS.
(a) "Account" shall mean the applicable custodial account maintained by
the Custodian on behalf of the Trust for each Fund. The Account of each Fund
shall be separate from the Account of each other Fund and the assets of a Fund's
Account shall not in any way be charged with the liabilities of any other Fund's
Account.
(b) "Bank" shall mean a bank as defined in Sec.tion 2(a)(5) of the
Investment Company Act of 1940 Act.
(c) "Fund" shall mean each of the separate series of the Trust as
listed in Appendix A hereto and each other series of the Trust as may be made
subject to this Agreement by a writing between the Trust and the Custodian.
(d) "Securities" shall mean and include stocks, shares, bonds,
debentures, notes, money market instruments, "foreign securities," as that term
is defined in Rule 17f-5 under the 1940 Act, and or other obligations and any
certificates, receipts, warrants or other instruments representing rights to
receive, purchase, or subscribe for the same, or evidencing or representing any
other rights or interests therein, or in any property or assets. Unless
otherwise indicated herein, "Securities" shall mean both U. S. and "foreign
securities", as that term is defined in Sec. 17(f) of the Investment Company Act
of 1940.
(e) "Officers' Certificate" shall mean a request or directions in
writing or a written confirmation of an oral requests or directions in writing
signed in the name of the Trust Fund by any two of the Officers Chairman of the
Executive Committee, the President, a Vice President, the Secretary, the Clerk
or the Treasurer of the Trust, the Chariman of the Corporation or any other
persons duly authorized to sign by the Board of Trustees or the Executive
Committee of the TrustFund.
(f) "1940 Act" shall mean the United States Investment Company Act of
1940, as amended.
(g) "Officer of the Trust" shall mean any President, Vice-President,
Treasurer, Assistant Treasurer, Secretary of Assistant Secretary of the Trust.
(h) "Securities Depository" means a clearing corporation registered
under Section 17A of the Securities Exchange Act of 1934 which maintains a
system for the central handling of securities in which all securities of any
particular class or series of any issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of the securities.
(i) "Book-Entry securities" means securities issued by the Treasury of
the United States of America and Federal agencies and instrumentalities of the
United States of America that are maintained in the book-entry system provided
by the Federal Reserve Banks.
(j) "Book-Entry Account" means an account maintained by a Federal
Reserve Bank.
SECTION 2. CUSTODIAN AS AGENT.
The Custodian is authorized to act under the terms of this Agreement as
the Trust's Fund's agent and to shall be representing the Trust and a particular
Fund of the Trust Fund whenever acting within the scope of the Agreement.
SECTION 3. NAMES, TITLES AND SIGNATURE OF FUND'S OFFICERS.
(a) An Officer of the Trust Fund will certify to the Custodian the
names, titles, and signatures of those persons authorized to sign the Officers'
Certificates, as well as names of the Board of Trustees and the Executive
Committee. Said Officer, or his or her successor, will provide the Custodian
with any changes which may occur from time to time.
(b) The Custodian is authorized to rely and act upon written and
manually signed instructions of any person or persons (if Custodain has been
directed to act on the instructions of more than one person) more than one, so
indicated) named in a identified on a separate list ("Authorized Persons") of
listing separately those persons who may authorize the withdrawal of any portion
of the cash or Securities contained in an Account which will be furnished to the
Custodian from time to time and signed by an Officers of the Trust The Fund and
certified by its Secretary or an Assistant Secretary, ("Authorized Persons").
The Trust Fund will provide the Custodian with authenticated specimen signatures
of all Authorized Persons.
(c) 40 Act Custody
Revised 5/97
The Custodian is further authorized to rely upon any instructions received by
any other means and identified as having been given or authorized by any
Authorized Person; regardless of whether such instructions shall in fact have
been authorized or given by any such persons; provided, that,
(ai) the Custodian and the Trust Fund shall have previously agreed
in writing upon the means of transmission and the method of identification for
such instructions;
(bii) the Custodian has not been notified by the Trust Fund to cease
to recognize such means and methods,; and
(ciii) such means and methods have in fact been used.
(d) If the Trust Fund should so choose to have dial-up or other means
of direct access to the Custodian's accounting system for Securities in
custodial accounts, the Custodian is also authorized to rely and act upon any
instructions received by the Custodian through the terminal device, regardless
of whether such instructions shall in fact have been given or authorized by the
Trust, Fund provided that such instructions are accompanied by passwords which
have been mutually agreed to in writing by the Custodian and the Trust Fund and
the Custodian has not been notified by the Trust Corporation to cease
recognizing such passwords.
Wheren dial-up or other direct means of access to the Custodian's
accounting system for cash or Securities is utilized, the Trust Fund agrees to
indemnify the Custodian and hold it harmless from and against any and all
liabilities, losses, damages, costs, reasonable counsel fees, and other
reasonable expenses of every nature suffered or incurred by the Custodian by
reason of or in connection with the improper use, unauthorized use and misuse by
the Trust Fund or its employees of any terminal device with access to the
Custodian's accounting system for cash or Securities in Ccustodial Aaccounts,
unless such losses, damages, etc., result from grossly negligent or wrongful
acts of the Custodian, its employees or agents.
SECTION 4. RECEIPT AND DISBURSEMENT OF MONEY.
(a) A. The Custodian shall open and maintain a separate Account with
respect to each Fundthe Account, subject to debit only by a draft or order by
the Custodian acting pursuant to the terms of this Agreement. The Custodian
shall hold in each Accountthe Account, subject to the provisions hereof, all
cash received by it from or for the aAccount of the applicable Fund.
1. (b) With respect to the Account of each Fund, the The Custodian
shall make payment of cash to the AAccount or shall debit the Account only :
(i)
(a) for the purchase of Securities for the portfolio of the Fund upon the
delivery of such Securities to the Custodian, registered in the name of
the Fund or of the nominee of the Custodian referred to in Section 9
below;
(ii) (b) for payments in connection with the conversion, exchange or
surrender of Securities owned or subscribed to by the Fund held by or
to be delivered to the Custodian;
(ciii) for payments in connection with the return of the cash
collateral received in connection with Securities loaned by the Fund;
(div) for payments in connection with futures contracts positions
held by the Fund;
(ev) for payments of interest, dividends, taxes and in connection
with rights offerings; or
(fvi) for other proper Fund purposes.
All Securities accepted in connection with the purchase of such
Securities, if (a) usual in the course of local market practice or (b)
specifically required in instructions from the Fund, shall be accompanied by
payment of, or a "due ▇▇▇▇" for, any dividends, interest or other distributions
of the issue due the purchaser.
(c)
2. Except as hereinafter provided, the Custodian shall make any payment for
which it receives direction from an Authorized Person so long as such direction
(i) is (aA) in writing (or is a facsimile transmission of a written direction),
(bB) electronically transmitted to the Custodian as provided in Section 3 or
(cC) orally when written or electronic directions cannot reasonably be given
within the relevant time period, orally when the person giving the direction is
known to the Custodian's employee and when the person giving such direction (i)
such direction assures the Custodian that the directions will be confirmed in
writing by an Authorized Persons within twenty-four (24) hours and (ii) states
that such payment is for a purpose permitted under the terms of this subsection.
3 (d) . All funds received by the Custodian in connection with the sale,
transfer, exchange or loan of Securities will be credited to the applicable
Account in immediately available funds as soon as reasonably possible on the
date such received funds are immediately available. Payments for purchase of
Securities for an the Account made in immediately available funds will be
charged against the Account on the day of delivery of such Securities and all
other payments will be charged on the business day after the day of delivery.
(i) A. The Custodian is hereby authorized and required to (aA) collect
on a timely basis all income and other payments with respect to
Securities held hereunder to which a the Fund shall be entitled either
by law or pursuant to custom in the securities business, and to credit
such income to the Account, (bB) detach and present for payment all
coupons and other income items requiring presentation as and when they
become due, (cC) collect interest when due on Securities held
hereunder, and (dD) endorse and collect all checks, drafts or other
orders for the payment of money received by the Custodian for the
account of the Fund.
(ii) B. If the Custodian agrees to advance cash or Securities of the
Custodian for delivery on behalf of a the Fund to a third party, any
property received by the Custodian on behalf of the Fund in respect of
such delivery shall serve as security for the Fund's obligation to
repay such advance until such time as such advance is repaid, and, in
the case where such advance is extended for the purchase of Securities
which constitute "margin stock" under Regulation U of the Board of
Governors of the Federal Reserve System, such additional Securities of
the Fund, as shall be necessary for the Custodian, in the Custodian's
reasonable determination, to be in compliance with such Regulation U
also shall constitute security for the Fund's obligation to repay such
advance. Each The Fund hereby grants the Custodian a security interest
in such property of the Fund to secure such advance and agrees to repay
such advance promptly without demand from the Custodian (and in any
event, as soon as reasonably practicable following any demand by the
Custodian), unless otherwise agreed by both parties. Should a the Fund
fail to repay such advance as required, the Custodian shall be entitled
immediately to apply such security to the extent necessary to obtain
repayment of the advance, subject, in the case of a Fund's failure to
make prompt repayment without demand, to prior notice to the Fund.
SECTION 5. RECEIPT OF SECURITIES.
(a) The Custodian shall hold in each Fund's the Account, segregated at
all times from those of any other persons, firms or corporations (including the
Accounts of other Funds), pursuant to the provisions hereof, all Securities
received by it from or for the account of the applicable the Fund. All such
Securities are to be held or disposed of by the Custodian for, and subject at
all times to the instructions of, the applicable Fund pursuant to the terms of
this Agreement. The Custodian shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any of the Securities and cash,
except pursuant to the directive of the applicable Fund and only for the account
of the Fund as set forth in Section 7 of this Agreement.
(b) The Custodian and its agents (including foreign subcustodians) may
make arrangements with Depository Trust Fund ("DTC") and other foreign or
domestic depositories or clearing agencies, including the Federal Reserve Bank
and any foreign depository or clearing agency, whereby certain Securities may be
deposited for the purpose of allowing transactions to be made by bookkeeping
entry without physical delivery of such Securities, subject to such restrictions
as may be agreed upon by the Custodian and the Fund. The Custodian shall
immediately commence procedures to replace Securities lost due to robbery,
burglary or theft while such Securities are within its control or that of its
agents or employees upon discovery of such loss.The Trust hereby authorizes the
Custodian to deposit assets of the Funds of the Trust as follows:
(i) deposit with the Custodian or any opther bank licensed and examined
by the United States or any state thereof;
(ii) deposit in the Custodian's account(s) with any Securities
Depository all or any part of the Securities as may from time to time
be held for the Trust; and
(iii) deposit Book-Entry Securities belonging to the Funds in a
Book-Entry Account maintained for the Custodian by a Federal Reserve
Bank.
So long as any deposit referred to in (ii) or (iii) above is maintained for the
Trust, the Custodian shall:
(A) deposit the Securities in an account that includes only assets
held by it for customers;
(B) with respect to Securities of the Trust transferred to the account,
identify as belonging to the Trust a quantity of securities in a
fungible bulk of securities that are registered in the name of the
Custodian or its nominee, or shown on the Custodian's account on the
books of the Securities Depository, the Book-Entry System, or the
Custodian's agent;
(C) promptly send to the Trust all reports the Custodian receives from
the appropriate Federal Reserve Bank or Securities Depository on its
respective system of internal accounting control; and
(D) send to the Trust such reports of the systems of internal
accounting control of the Custodian and its agents through which such
Securities are deposited as are available and as the Trust may
reasonably request from time to time.
The Custodian shall not waive any rights it may have against a Securities
Depository or Federal Reserve Bank. The Trust may elect to be subrogated to the
rights of the Custodian against the Securities Depository or Federal Reserve
Bank or any other person with respect to any claim that the Custodian may have
as a consequence of any loss or damage suffered by the Trust as a result of the
Custodian's use of the Securities Depository or Book-Entry account if and to the
extent that the Trust has not been made whole for any such loss or damage.
SECTION 6. FOREIGN SUBCUSTODIANS AND OTHER AGENTS.
(a) In the event the Custodian places Securities, pursuant to this
Agreement, with any foreign subcustodian, the Custodian agrees that it shall
place such Securities only with those foreign subcustodians which either are
satisfy the requirements of "eligible foreign custodians" as defined in under
Rule 17f-5 under the 1940 ActSection 17(f) of the U. S. Investment Company Act
of 1940, or with respect to which exemptive relief has been granted by the U.
S. Securities and Exchange Commission from the requirements of Section 17(f).
The Custodian agrees further that in placing Securities with any such
foreign subcustodian, it will enter into a written subcustodian agreement which
shall provide that: (i) the Custodian will be adequately indemnified and the
Securities so placed adequately insured in the event of loss, as provided in
subsection 6(b)part (b) of this section; (ii) the Securities will not be subject
to any right, charge, security interest, lien or claim of any kind in favor of
the foreign subcustodian or its creditors (except any claim for payment for the
services provided by such subcustodian and any related expenses; provided,
however that the Custodian shall use its best efforts promptly to release any
such right, charge, security interest, lien or claim on the assets, except to
the extent such right, charge, security interest, lien or claim arises with
respect to a special request or requirement by the Fund for services the cost of
which and the expenses incurred in connection with which the Fund has not paid
or has declined to pay, it being agreed and understood that, in the ordinary
course, all payments for usual and routine services rendered and expenses
incurred by a subcustodian shall be the obligation of the Custodian); (iii)
beneficial ownership of the Securities will be freely transferable without
payment of money or value other than for safe custody or administration; (iv)
adequate records will be maintained identifying the Securities as belonging to
the Funds of the Trust; (v) the Custodian's independent public accountants will
be given access to those records or the confirmation of the contents of those
records; and (vi) the Custodian will receive periodic reports with respect to
the safekeeping of the Securities, including, but not necessarily limited to,
notification of any transfer to or from the Accounts.
(b) In addition to the indemnities included in Section 13 hereof, the
Custodian agrees that the Custodian shall be liable to the Trust for any loss
which shall occur as a result of the failure of a subcustodian as listed in
exhibit B hereto to exercise reasonable care with respect to the safekeeping of
the Securities and cash of the Trust to the same extent that the Custodian would
be liable to the Trust if the Custodian were holding such Securities or cash in
NewYorkto indemnify and hold harmless the Fund from any and all loss or damage
incurred or suffered by the Fund as a result of placement by the Custodian of
Securities with a foreign subcustodian hereunder, to the extent the Custodian
receives indemnification from such foreign subcustodian pursuant to part (a)(i)
of this section.
(c) With respect to any Securities to be placed with foreign
subcustodians pursuant to this section, the Custodian represents and warrants
that during the term of this Agreement it will carry a Bankers Blanket Bond or
similar insurance for losses incurred as a result of such sub-custodial
arrangements.
(d) The Trust Fund authorizes the Custodian to release any and all
information regarding Securities placed with foreign subcustodians hereunder as
may be required by court order of a court of competent jurisdiction.
(e) So long as Rule 17f-5 under the 1940 Act so requires the Trust's
Board of Trustees or Funds's investment adviser to review or monitor the
Custodian's global custody network, the Custodian shall (a) furnish annually to
the Trust information concerning the foreign sub-custodians employed by the
Custodian similar in kind and scope to that furnished to the Fund in connection
with the initial approval of this Agreement; (b) promptly inform the Trust in
the event that the custodian learns of (i) a material adverse change in the
financial condition of a foreign sub-custodian, (ii) any material loss of the
assets of a Fund or (iii) a foreign sub-custodian not the subject of an
exemptive order from the U.S. Securities and Exchange Commission ceasing, or
becoming likely to cease, to meet applicable minimum shareholders' equity
requirements.
SECTION 7. TRANSFER, EXCHANGE AND REDELIVERY OF SECURITIES.
The Custodian (or a subcustodian or any other agent of the Custodian)
shall have sole power to release or deliver any Securities of a the Fund held by
the Custodian (or such subcustodian or agent) pursuant to this Agreement. The
Custodian agrees (and will obtain an undertaking from each subcustodian or other
agent) that Securities held by the Custodian (or by a subcustodian or other
agent of the Custodian) will be transferred, exchanged or delivered only :
(i) for sales of Securities for the account of the Fund in accordance
with (iA) "New York Street Practice", (B(ii) predominant established
practice in the relevant local market, or (iiiC) specific instructions
from the Fund; or
(ii) when Securities are called, redeemed or retired or otherwise
become payable;
(iii) for examination by any broker selling any such Securities in
accordance with "street delivery" custom or other relevant local market
practice;
(iv) in exchange for or upon conversion into other Securities whether
pursuant to any plan of merger, consolidation, reorganization,
recapitalization or readjustment, or otherwise;
(v) upon conversion of such Securities pursuant to their terms into
other Securities;
(vi) upon exercise of subscription, purchase or other similar rights
represented by such Securities pursuant to their terms;
(vii) for the purpose of exchanging interim receipts or temporary
Securities for definitive Securities;
(viii) for the purpose of tendering Securities;
(ix) for the purpose of delivering Securities lent by the Fund;
(x) for purposes of delivering collateral upon redelivery of Securities
lent or for purposes of delivering excess collateral; or
(xi) for other proper Fund purposes.
As to any deliveries made by the Custodian pursuant to items (bii), (div), (ev),
(fvi), (gvii), (iix), (jx) and (kxi), Securities in exchange therefor shall be
deliverable to the Custodian (or a subcustodian or other agent of the
Custodian). The Custodian may rely upon any written, electronic or oral
instructions or an Officers' Certificate relating thereto as provided for in
Sections 3 and 4 hereofabove.
SECTION 8. THE CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS.
Unless and until the Custodian receives instructions to the contrary,
the Custodian (or a subcustodian or other agent of the Custodian) shall:
(i) present for payment all coupons and other income items held by it
for the account of each the Fund which call for payment upon
presentation and hold the cash received by it upon such payment in the
applicable Account;
(ii) collect interest and cash dividends and other distributions,
provide notice to the Fund of receipts, and deposit to the Account;
(iii) hold for the account of the Fund all stock dividends, rights and
similar Securities issued with respect to any Securities held by the
Custodian under the terms of this Agreement;
(iv) execute as agent on behalf of the Fund all necessary ownership
certificates required by the United States Internal Revenue Code of
1986, as amended, or the Income Tax Regulations of the United States
Treasury Department, the laws of any State or territory of the United
States, or, in the case of Securities held through foreign
subcustodians, the laws of the jurisdiction in which such Securities
are held, now or hereafter in effect, inserting the Fund's name on such
certificates as the owner of the Securities covered thereby, to the
extent it may lawfully do so;
(v) use its best efforts, in cooperation with the Fund, to file such
forms, certificates and other documents as may be required to comply
with all applicable laws and regulations relating to withholding
taxation applicable to the Securities; and
(vi) use its best efforts to assist the Fund in obtaining any refund
of local taxes to which the Fund may have a reasonable claim.
The Trust The Fund agrees to furnish to the Custodian such information and to
execute such forms and other documents as the Custodian may reasonably request
or as otherwise may be reasonably necessary in connection with the Custodian's
performance of its obligations under clauses (ev) and (fvi).
SECTION 9. REGISTRATION OF SECURITIES.
(a) Except as otherwise directed by an Officers' Certificate, the
Custodian shall register all Securities, except such as are in bearer form, in
the name of the Trust or the applicable Fund or a registered nominee of the
Trust or the Fund Fund or a registered nominee of the Custodian or a
subcustodian. Securities deposited with a Securities Depository or with a DTC or
a foreign subcustodian securities depository permitted under Section 56 may be
registered in the nominee name of the Securities Depository DTC or such foreign
subcustodian securities depository. The Custodian shall execute and deliver all
such certificates in connection therewith as may be required by the applicable
provisions of the United States Internal Revenue Code offo 1986, as amended, the
Income Tax Regulations of the United States Treasury Department, the laws of any
State or territory of the United States, or, in the case of Securities placed
with foreign subcustodians, the laws of the jurisdiction in which such
Securities are held. The Custodian shall maintain such books and records as may
be necessary to identify the specific Securities held by it hereunder at all
times.
(b) The Trust Fund shall from time to time furnish the Custodian
appropriate instruments to enable the Custodian to hold or deliver in proper
form for transfer, or to register in the name of its registered nominee, any
Securities which it may hold for the account of a the Fund and which may from
time to time be registered in the name of athe Fund.
SECTION 10. VOTING AND OTHER ACTION.
Neither the Custodian nor any nominee of the Custodian or of DTC shall
vote any of the Securities held hereunder by or for the account of a the Fund
except in accordance with the instructions contained in an Officers'
Certificate.
The Custodian shall deliver or have delivered to the Trust Fund all
notices, proxies and proxy soliciting materials with relation to such
Securities, such proxies to be executed by the registered holder of such
Securities (if registered otherwise than in the name of a the Fund), but without
indicating the manner in which such proxies are to be voted.
With respect to Securities deposited with a Securities Depository or a DTC or
any other depository, including a foreign subcustodian, as provided for in
Section 6 hereof, that where such Securities may be registered in the nominee
name of the Securities Depository or the foreign subcustodianDTC, or other such
depository the Custodian shall request that the nominee shall not vote any of
such deposited Securities or execute any proxy to vote thereon or give any
consent or take any other action with respect thereto unless instructed to do so
by the Custodian following receipt by the Custodian of an Officers' Certificate.
SECTION 11. TRANSFER TAX AND OTHER DISBURSEMENTS.
The Trust, on behalf of each Fund, Fund shall pay or reimburse the
Custodian from time to time for any transfer taxes payable upon transfers of
Securities made hereunder and for all other necessary and proper disbursements
and expenses made or incurred by the Custodian in the performance of this
Agreement, as required by U.S. law or the laws of the jurisdiction in which the
Securities are held, as the case may be.
The Custodian shall execute and deliver such certificates in connection
with Securities delivered to it or by it under this Agreement as may be required
under the laws of any jurisdiction to exempt from taxation any exemptible
transfers and/or deliveries of any such Securities.
SECTION 12. COMPENSATION AND THE CUSTODIAN'S EXPENSES.
The Custodian shall be paid as compensation for its services pursuant
to this Agreement such compensation as may from time to time be agreed upon in
writing between the two parties.
SECTION 13. INDEMNIFICATION.
The Trust, on behalf of each Fund, Fund agrees to indemnify and hold
harmless the Custodian and its employees, agents and nominee from all taxes,
charges, expenses, assessments, claims and liabilities (including attorneys'
fees) incurred or assessed against them in connection with the performance of
the Agreement, except such as may arise from their own grossly negligent action,
negligent failure to act or willful misconduct. The Custodian agrees to
indemnify and hold harmless the Trust Fund and its trustees, officers,
employees, and agents from all taxes, charges, expenses, assessments, claims and
liabilities (including attorneys fees) incurred or assessed against the Trust
Fund in connection with the performance of the Agreement, which may arise from
grossly negligent action, grossly negligent failure to act or willful misconduct
on the part of the Custodian. In the event of any advance of cash for any
purpose made by the Custodian resulting from orders or instructions of a the
Fund, or in the event that the Custodian or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or liabilities in
connection with the performance of this Agreement, except such as may arise from
its or its nominee's own grossly negligent action, grossly negligent failure to
act or willful misconduct, any property at any time held for the account of the
Fund shall be security therefor.
Within a reasonable time after receipt by an indemnified party of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party, notify in
writing the indemnifying party of the commencement thereof; and the omission so
to notify the indemnifying party will not relieve it from any liability
hereunder as to the particular item for which indemnification is then being
sought, unless such omission is a result of the failure to exercise reasonable
care on the part of the indemnified party. In case any such action is brought
against an indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to assume the defense thereof, with counsel who shall be to the
reasonable satisfaction of such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation. Any such indemnifying party shall not be liable to any such
indemnified party on account of any settlement of any claim or action effected
without the consent of such indemnifying party.
SECTION 14. MAINTENANCE OF RECORDS.
The Custodian will maintain records with respect to each the Funds,
including general ledgers, portfolio ledgers, subsidiary ledgers, if any,
appropriate journals or other records reflecting (i) Securities maintained in
the portfolio of a Fund, (ii) Securities borrowed, loaned or collateralizing
obligations of a Fund, (iii) monies borrowed and monies loaned (together with a
record of the collateral thereto and substitutions of such collateral), (iv)
dividends and interest received, and (v) dividends receivable and interest
insert accrued, in compliance with the rules and regulations of the Investment
Company Act of 1940 Act, as amended, where applicable.
SECTION 15. REPORTS BY THE CUSTODIAN.
The Custodian will furnish to the Trust Fund at the end of every month,
and at the close of each quarter of a Fund's fiscal year, a list of the
portfolio Securities and the aggregate amount of cash in each Account Fund and
will assist in the preparation of the financial data for the N-SAR annual report
to be filed on behalf of a Fund.
The Custodian shall furnish the Trust Fund with such other reports
concerning transactions in the Accounts and/or the Securities as may be agreed
upon from time to time. The books and records of the Custodian pertaining to its
actions under this Agreement shall be kept and preserved by the Custodian in the
manner and, in accordance with applicable rules and regulations under the 1940
ActInvestment Company Act of 1940, and shall be open to inspection and audit at
reasonable times and upon reasonable notice to the Custodian, by officers of any
auditors employed by the Trust Fund (and such other persons as the Trust Fund
may designate from time to time). All such books and records shall be the
property of the Trust Fund and the Custodian shall forthwith upon the
TrustFund's request, turn over to the Trust Fund and cease to retain in its
files, records and documents created and maintained by the Custodian pursuant to
this Agreement, which are no longer needed by the Custodian in performance of
its services or for its protection except that the Custodian may maintain copies
of any such files, records and documents to the extent needed for its
protection.
SECTION 16. FUND VALUATION -- INTENTIONALLY LEFT BLANK.
SECTION 17. TERMINATION AND ASSIGNMENT.
(a) This agreement may be terminated by the with respect to one or more
Funds Fund or by the Trust or by the Custodian, immediately upon written notice
from the Trust Fund or the Custodian, as applicable, to the other party, if the
other party fails materially to perform its obligations hereunder, and may
otherwise be terminated by the Trust Fund or by the Custodian on sixty ninety
(960) days' notice, given in writing and sent by registered mail to the
Custodian or the Trust Fund as the case may be. Upon termination of this
Agreement, the Custodian shall deliver the Securities and cash in the aAccount
of the Funds for which this Agreement has been terminated to the Trust such
entity as is designated in writing by the Trust Fund and, in the absence of such
a designation may, but shall not be obligated to, deliver them to a bank or
trust company of the Custodian's own selection having an aggregate capital,
surplus and undivided profits as shown by its last published report of not less
than 50 million dollars ($50,000,000), the Securities and cash to be held by
such bank or trust company for the benefit of the Trust Fund under terms similar
to those of this Agreement, and the Trust Fund shall to be obligated to pay to
such transferee the then current rates of such transferee for services rendered
by it; provided, however, that t. The Custodian may decline, however, to
transfer such amount of such Securities equivalent to all fees and other sums
owing by the applicable Fund to the Custodian, and the Custodian shall have a
charge against and security interest in such amount until all monies owing to it
have been paid, or escrowed to its satisfaction.
(b) This Agreement may not be assigned by the Custodian without the
consent of the TrustFund, authorized or approved by a resolution of the Trust's
Fund's Board of Trustees.
SECTION 18. FORCE MAJEURE.
The Custodian shall not be liable or accountable for any loss or damage
resulting from any condition or event beyond its reasonable control; provided,
however, that the Custodian shall promptly use its best efforts to mitigate any
such loss or damage to the Trust or a Fund Fund as a result of any such
condition or event. For the purposes of the foregoing, the actions or inactions
of the Custodian's subcustodians and other agents shall not be deemed to be
beyond the reasonable control of the Custodian. In connection with the
foregoing, the Custodian agrees (and agrees that it will use its best efforts to
obtain the undertaking of its subcustodians and other agents to the effect) that
the Custodian (and/or such subcustodian or agent) shall maintain such alternate
power sources for computer and related systems and alternate channels for
electronic communication with such computers and related systems that the
failure of the primary power source and/or communications channel of the
Custodian (and/or its subcustodians or other agents) will not foreseeabley
result in any loss or damage to the Trust or any FundFund.
SECTION 19. THIRD PARTIES.
This Agreement shall be binding upon and the benefits hereof shall
inure to the parties hereto and their respective successors and assigns.
However, nothing in this Agreement shall give or be construed to give or confer
upon any third party any rights hereunder.
SECTION 20. AMENDMENTS.
The terms of this Agreement shall not be waived, altered, modified,
amended, supplemented or terminated in any manner whatsoever, except by written
instrument signed by both of the parties hereto.
SECTION 21. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the
laws of Tthe Commonwealth of Massachusetts.
SECTION 22. COUNTERPARTS.
This agreement may be executed in several counterparts, each of which
is an original.
SECTION 23. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
SECTION 234. NOTICES.
All notices provided for herein shall be in writing and shall become
effective when deposited in the United States mail, postage prepaid and
certified, addressed
(ai) iif to the Custodian, at: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Worldwide Custody - MS: 45-02-90
(bii) if to the TrustFund, at: Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: _____________________________ Secretary
or to such other address as either party may notify the other in writing.
A copy of the Declaration of Trust Instrument of the Trust has been
delivered to the Custodian Fund is on file with the Secretary of the Trust (Name
of State), and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Trust Fund as Trustees, and the obligations of this
instrument are not binding upon any of the Trustees, officers, or shareholders
of the Trust Fund individually but binding only upon assets and property of the
applicable Fund of the TrustFund.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
MEMORIAL FUNDS
By: /s/ Max Berueffy
------------------------------
Name: Max Berueffy, Vice President
and Secretary
Title:
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Title: Director and Senior Manager
CUSTODIAN AGREEMENT
MEMORIAL FUNDS
APPENDIX A
FUNDS OF THE TRUST
MAY 1, 1998
Government Bond Fund
Corporate Bond Fund
Value Equity Fund
Growth Equity Fund
CUSTODIAN AGREEMENT
MEMORIAL FUNDS
APPENDIX B
SUBCUSTODIANS FOR WHICH THE CUSTODIAN IS LIABLE
COUNTRY SUBCUSTODIAN
Australia Australia & New Zealand Banking Group, Ltd.
Austria Creditanstalt-Bankverein
Belgium Banque Bruxelles ▇▇▇▇▇▇▇, ▇.▇.
Canada Canadian Imperial Bank of Commerce
Denmark Den Danske Bank
Finland ▇▇▇▇▇▇ Bank
France Credit Agricole Indosuez
Germany Dresdner Bank AG
Greece Citibank, N.A.
Hong Kong Standard Chartered Bank
Hungary Creditanstalt-Bankverein
Indonesia Standard Chartered Bank
Ireland The Bank of Ireland
Italy Banque Paribas
Japan Bank of Tokyo-Mitsubishi, Ltd.
Korea Standard Chartered Bank
Malaysia Standard Chartered ▇▇▇▇
▇▇▇▇▇▇ Citibank, N.A.
Netherlands Kas-Associatie N.V.
New Zealand Australia & New Zealand Banking Group, Ltd.
Norway Den norske Bank
Portugal Banco Espirito Santo Commercial de Lisboa
Singapore Standard Chartered Bank
South Africa Standard Bank of South Africa Ltd.
Spain Banco Bilboa Vizcaya
Sweden Skandinaviska Enskilda Banken
Switzerland Bank Leu Ltd.
Transnationalitional Cedel, S.A.
United Kingdom Midland Bank plc
First Chicago Clearing Centre
Venezuela Citibank, N.A.
Argentina, Brazil, Chile , Columbia, Panama, Peru, United Bank Boston, N.A.
States and Uruguay
