EXHIBIT 8
CUSTODIAN AGREEMENT
AGREEMENT, dated as of December 30, 1992, between The Xxxxxx Trust (the
"Trust"), a business trust duly organized and existing under the laws of the
State of Delaware, and The First National Bank of Boston (the "Custodian"), a
banking institution duly organized under the laws of the United States:
WHEREAS, the Trust desires to appoint the Custodian as custodian of its
securities and cash and the Custodian is willing to act in such capacity upon
the terms and conditions set forth below; and
WHEREAS, the Custodian in its capacity as custodian will also collect and
apply the dividends and interest on securities in the manner and to the extent
set forth below;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties do hereby agree as follows:
SECTION 1. DEFINITIONS
The terms, as defined in this Section, whenever used in this Agreement or
in any amendment or supplement hereto shall have the meanings specified below,
insofar as the context will allow.
(a) Board: The term Board shall mean the Board of Trustees of the Trust.
(b) Book-Entry Account: The term Book-Entry Account shall mean an account
maintained by a Federal Reserve Bank in which Book-Entry Securities are held.
(c) Book-Entry Securities: The term Book-Entry Securities shall mean
securities issued by the United States Treasury and United States Federal
agencies and instrumentalities that are maintained in the book-entry system of a
Federal Reserve Bank in accordance with the book-entry regulations of the
Treasury and the various Federal agencies and instrumentalities.
(d) Custodian: The term Custodian shall mean The First National Bank of
Boston, in its capacity as custodian under this Agreement.
(e) Oral Instructions: The term Oral Instructions shall mean an
authorization, instruction, approval, item or set of data, or information of any
kind transmitted to the Custodian in person or by telephone, vocal telegram or
other electronic means, by a person or persons reasonably believed in good faith
by the Custodian to be a person or persons authorized by a resolution of the
Board to give Oral Instructions on behalf of the Trust. Each Oral Instruction
shall specify whether it is applicable to the Trust or a specific Series.
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(f) Securities: The term Securities shall mean bonds, debentures, notes,
stocks, shares, evidences of indebtedness, and other securities and investments
from time to time owned by the Trust.
(g) Securities Depository: The term Securities Depository shall mean a
clearing corporation registered under Section 17A of the 1934 Act 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.
(h) Series: The term Series shall mean each investment portfolio of the
Trust as now exists or may in the future be created.
(i) Sub-Custodian: The term Sub-Custodian shall mean a sub-custodian
approved by the Trust as provided in Section 17.
(j) The Trust: The term Trust shall mean The Xxxxxx Trust.
(k) Written Instructions: The term Written Instruction shall mean an
authorization, instruction, approval, item or set of data, or information of any
kind transmitted to the Custodian in original writing containing original
signatures, or a copy of such document transmitted by telecopy, including
transmission of such signature, or other mechanical or documentary means, at the
request of a person or persons reasonably believed in good faith by the
Custodian to be a person or persons authorized by a resolution of the Board to
give Written Instructions on behalf of the Trust. Each Written Instruction
shall specify whether it is applicable to the Trust or a specific Series.
(l) 1934 Act: The term 1934 Act shall mean the Securities Exchange Act of
1934, as amended.
(m) 1940 Act: The term 1940 Act shall mean the Investment Company Act of
1940, as amended.
SECTION 2. RESOLUTIONS FOR INSTRUCTIONS
The Trust shall, as necessary, file with the Custodian a certified copy of
the operative resolution of the Board authorizing execution of Written
Instructions and the number of signatories required and setting forth authentic
signatures of all signatories authorized to sign on behalf of the Trust or any
Series thereof. Such resolution shall constitute conclusive evidence of the
authority of all signatories designated therein to act and shall be considered
in full force and effect, with the Custodian fully protected in acting in
reliance thereon, until the Custodian receives a certified copy of a replacement
resolution adding or deleting a person or persons authorized to give Written
Instructions.
The Trust shall, as necessary, file with the Custodian a certified copy of
the operative resolution of the Board authorizing the transmittal of Oral
Instructions and specifying the person or persons
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authorized to give Oral Instructions on behalf of the Trust or any Series
thereof. This resolution shall constitute conclusive evidence of the authority
of the person or persons designated therein to act and shall be considered in
full force and effect, with the Custodian fully protected in acting in reliance
therein, until the Custodian actually receives a certified copy of a replacement
resolution adding or deleting a person or persons authorized to give Oral
Instructions. If the officer certifying the resolution is authorized to give
Oral Instructions, the certification shall also be signed by a second officer of
the Trust authorized to give Written Instructions.
SECTION 3. AUTHORIZATION FOR CUSTODIAN TO ACT
For all purposes under this Agreement, the Custodian is authorized to act
upon receipt of the first of any Written or Oral Instruction it receives. If
the first Instruction is an Oral Instruction, the Trust shall be responsible for
delivering, or having delivered to the Custodian, a confirmatory Written
Instruction; and in cases where the Custodian receives an Instruction, whether
Written or Oral, with respect to a portfolio transaction, the Trust shall cause
the broker or dealer to send a written confirmation of the transaction to the
Custodian. The Custodian shall be entitled to rely on the first Instruction
received and, for any act or omission undertaken in compliance therewith, shall
be free of liability and fully indemnified and held harmless by the Trust. The
sole obligation of the Custodian with respect to any confirmatory Written
Instruction or broker or dealer written confirmation shall be to make reasonable
efforts to detect any discrepancy between the original Instruction and such
confirmation and to report such discrepancy to the Trust. The Trust shall be
responsible, at the Trust's expense, for taking any action, including any
reprocessing, necessary to correct any discrepancy or error, and to the extent
such action requires the Custodian to act, the Trust shall give the Custodian
specific Written Instructions as to the action required.
SECTION 4. APPOINTMENT AS CUSTODIAN
The Trust hereby appoints the Custodian as custodian of the Securities and
cash of each Series from time to time on deposit hereunder (collectively,
"assets"). The Securities held by the Custodian, unless payable to bearer or
maintained in a Securities Depository or Book-Entry Account pursuant to Section
5, shall be registered in the name of the Custodian or in the name of its
nominee, or if directed by Written Instructions, in the name of the Trust or its
nominee. Securities, excepting bearer securities, delivered from time to time
to the Custodian in certificated form shall, in all cases, be in due form for
transfer, or registered as above provided. The assets of the Trust shall be and
remain the sole property of the Trust and the Custodian shall have only custody
thereof.
The Custodian shall hold, earmark and physically segregate for the
appropriate Series account of the Trust all non-cash property, including all
Securities that are not maintained pursuant to Section 5 in a Securities
Depository or Book-Entry Account.
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The Custodian shall open and maintain a separate bank 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 Agreement, 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. Notwithstanding the foregoing, a separate bank
account may be established by the Trust to be used as a xxxxx cash account in
accordance with Rule 17f-3 under the 1940 Act and the Custodian shall have no
duty or liability with regard to such account.
Upon receipt of Written Instructions, cash held by the Custodian for the
Trust shall be deposited by the Custodian to the Custodian's credit 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. Such funds shall be
deposited by the Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity.
SECTION 5. DEPOSIT OF TRUST ASSETS
The Trust hereby authorizes the Custodian to deposit assets of the Series
as follows:
(a) [Intentionally Left Blank];
(b) 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
(c) deposit Book-Entry Securities belonging to the Trust in a Book-Entry
Account maintained for the Custodian.
So long as any deposit referred to in (b) or (c) above is maintained for
the Trust, the Custodian shall
(i) deposit the Securities in an account that includes only assets held
by it for customers;
(ii) send the Trust a confirmation (i.e., an advice of notice of
transaction) of any transfers of the Trust to or from the account;
(iii) 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;
(iv) promptly send to the Trust all reports it receives from the
appropriate Federal Reserve Bank or Securities Depository on its respective
system of internal accounting control; and
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(v) 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 Trust warrants that the Board has approved the arrangement for the
deposit of Securities in Securities Depositories and in Book-Entry Accounts.
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 a 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. TRANSFER OF ASSETS TO CUSTODIAN
The Trust will initially transfer and deposit or cause to be transferred
and deposited with the Custodian all of the assets owned by each Series at the
time this Agreement becomes effective. Such transfer and deposit shall be
evidenced by appropriate schedules duly executed by the Trust. The Trust will
deposit with the Custodian additional Securities of the Trust and dividends or
interest collected on such Securities as the same are acquired from time to
time.
The Trust will cause to be deposited with the Custodian from time to time
(i) the net proceeds of Securities sold, (ii) the applicable net asset value of
shares of the Trust sold, whether representing initial issue or any other
securities and (iii) cash as may be acquired.
SECTION 7. DISBURSEMENTS
The Custodian is hereby authorized and directed to disburse cash from time
to time as follows:
(a) for the purchase of Securities by the Trust, upon receipt by the
Custodian of (i) Written or Oral Instructions specifying the Securities and
stating the purchase price and the name of the broker, investment banker or
other party to or upon whose order the purchase price is to be paid and (ii)
either the Securities so purchased, in due form for transfer or already
registered as provided in Section 4, or notification by a Securities Depository
or a Federal Reserve Bank that the Securities have been credited to the
Custodian's account with the Securities Depository or Federal Reserve Bank;
(b) for transferring funds, including xxxx-to-the-market payments, as
directed by the Trust in connection with a repurchase agreement covering
Securities that have been received by the Custodian as provided in subsection
(a) above, upon receipt by the Custodian of Written or Oral Instructions
specifying the Securities, the purchase price and the party to whom the purchase
price is to be paid;
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(c) to advance or pay out accrued interest on bonds purchased, cash
dividends on stocks sold and similar items. In the event that any Securities
are registered in the name of the Trust or its nominee, the Trust will endorse,
or cause to be endorsed, to the Custodian dividend and interest checks, or will
issue appropriate orders to the issuers of the Securities to pay dividends and
interest to the Custodian;
(d) for transferring funds as directed by the Trust to its redemption
paying agent;
(e) for exercising warrants and rights received upon the Securities, upon
timely receipt of Written or Oral Instructions authorizing the exercise of such
warrants and rights and stating the consideration to be paid;
(f) for repaying, in whole or in part, any loan of the Trust, upon receipt
of Written or Oral Instructions directing payment;
(g) for transferring funds to any Sub-Custodian, upon receipt of Written
or Oral Instructions and upon agreement by the Custodian; and
(h) to disburse money to or upon the order of the Trust, as it may from
time to time direct for the following purposes;
(i) to pay proper compensation and expenses of the Custodian;
(ii) to transfer funds to the Trust's dividends disbursing agent;
(iii) to pay, or provide the Trust with money to pay, taxes, upon receipt
of appropriate Written or Oral Instructions;
(iv) to transfer funds to a separate checking account maintained by the
Trust pursuant to Section 17(f) of the 1940 Act; and
(v) to pay interest, management or supervisory fees, administration,
dividend and transfer agency fees and costs, compensation of personnel and
operating expenses, including but not limited to fees for legal, accounting
and auditing services. Before making any such payment or disbursement,
however, the Custodian shall receive, and may conclusively rely upon,
Written or Oral Instructions requesting such payment or disbursement and
stating that it is for one or more or the purposes enumerated above.
Notwithstanding the foregoing, the Custodian may disburse cash for other
corporate purposes; provided, however, that such disbursement may be made
only upon receipt of Written or Oral Instructions stating that such
disbursement was authorized by resolution of the Board as a proper
corporate purpose.
The determination of the Board as to what shall constitute income derived
from the Securities, as distinguished from principal or capital,
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shall be final and conclusive upon the Trust, the Custodian and the shareholders
of the Trust.
SECTION 8. DELIVERY OF SECURITIES
The Custodian is hereby authorized and directed to deliver Securities of
the Trust from time to time as follows:
(a) for completing sales of Securities sold by the Trust, upon receipt of
(i) Written or Oral Instructions specifying the Securities sold, the amount to
be received and the broker, investment banker or other party to or upon whose
order the Securities are to be delivered and (ii) the net proceeds of sale;
provided, however, that the Custodian may accept payment in connection with the
sale of Book-Entry Securities and Securities on deposit with a Securities
Depository by means of a credit in the appropriate amount to the account
described in Section 5(b) or (c) above; and provided further, that the Custodian
may advance the proceeds of sale to the Trust pending the completion of the sale
or the return to the Trust of the Securities in the event the sale fails to be
completed. Any such advance shall be at the Custodian's risk and the Custodian
shall be subrogated to the Trust's rights against any other person in the event
the sale is not completed and the Trust's Securities are not returned;
(b) for exchanging Securities for other Securities (and cash, if
applicable), upon timely receipt of (i) Written or Oral Instructions stating the
Securities to be exchanged, cash to be received and the manner in which the
exchange is to be made and (ii) the other Securities (and cash, if applicable)
as specified in the Written or Oral Instructions;
(c) for exchanging or converting Securities pursuant to their terms or
pursuant to any plan of conversion, consolidation, recapitalization,
reorganization, readjustment or otherwise, upon timely receipt of (i) Written or
Oral Instructions authorizing such exchange or conversion and stating the manner
in which such exchange or conversion is to be made and (ii) the Securities,
certificates of deposit, interim receipts, and/or cash to be received as
specified in the Written or Oral Instructions;
(d) for presenting for payment Securities that have matured or have been
called for redemption;
(e) for depositing with the lender Securities to be held as collateral
for a loan to the Trust, upon receipt of Written or Oral Instructions directing
delivery to the lender;
(f) in connection with a repurchase agreement, upon receipt of Written or
Oral Instructions stating (i) the Securities to be delivered and the payment to
be received and (ii) payment;
(g) for depositing with a depository agent in connection with a tender or
other similar offer to purchase portfolio Securities of the Trust, upon receipt
of Written or Oral Instructions;
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(h) for depositing Securities with the issuer thereof, or its agents, for
the purpose of transferring such Securities into the name of the Trust, the
Custodian or any nominee of either in accordance with Section 4; and
(i) for other proper corporate purposes; provided, that the Custodian
shall receive Written or Oral Instructions requesting such delivery.
SECTION 9. BORROWINGS
The Trust will cause any bank (including the Custodian) from which it
borrows money using Securities as collateral to deliver to the Custodian a
notice of undertaking in the form then currently employed by the lender setting
forth the amount that the lender will loan to the Trust against delivery of a
stated amount of collateral. The Trust shall promptly deliver to the Custodian
Written or Oral Instructions for each loan, stating (i) the name of the lender
and the amount of loan; and (ii) the name of the issuer, the title and the
number of shares or principal amount of the Securities to be delivered as
collateral. The Custodian shall deliver as directed by the Trust such specified
collateral, if any, and receive from the lender the total amount of the loan
proceeds; provided, however, that no delivery of Securities shall occur if the
amount of loan proceeds does not conform to the amount set forth in the Written
or Oral Instructions, or if such Instructions do not contain the requirements of
(ii) above.
The Custodian shall deliver, from time to time, any Securities required as
additional collateral for any transaction described in this Section, upon
receipt of Written or Oral Instructions. The Trust shall cause all Securities
released from collateral status to be returned directly to the Custodian.
SECTION 10. ADVANCEMENTS
If, in its sole discretion, the Custodian advances funds to the Trust to
pay for the purchase of Securities, to cover an overdraft of the Trust's account
with the Custodian, or to pay any other indebtedness to the Custodian, the
Trust's indebtedness shall be deemed to be a loan by the Custodian to the Trust,
payable on demand and bearing interest at the rate then charged by the Custodian
for such loans; provided, however, that the Custodian shall obtain the Trust's
prior approval for any advance of funds other than for the purpose of settling a
Securities trade. The Trust hereby agrees that the Custodian shall have a
continuing lien and security interest, to the extent of any such overdraft or
indebtedness, and to the extent required by Regulation U of the Board of
Governors of the Federal Reserve System in the event any security interest is
taken in "margin stock" as therein defined, in any property then held by the
Custodian or its agents for the benefit of the Trust, or in which the Trust may
have an interest. The Trust authorizes the Custodian, in its sole discretion at
any time, to charge any such overdraft or indebtedness, together with interest
due thereon, against any balance then credited to the Trust on the Custodian's
books.
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SECTION 11. OPTION CONTRACTS
[Intentionally Left Blank]
SECTION 12. VOTING AND CONSENT RESPONSIBILITY
The Custodian assumes no duty, obligation or responsibility whatsoever to
exercise any voting or consent powers with respect to the Securities held by it
from time to time hereunder. The Trust or such person or persons as it may
designate shall have the right to vote, consent or otherwise act with respect to
such Securities. The Custodian will exercise those efforts reasonably believed
in good faith by the Custodian to be adequate in the circumstances ("Best
Efforts") to furnish to the Trust in a timely manner all proxies or other
appropriate authorizations with respect to Securities registered in the name of
the Custodian or its nominee, so that the Trust or its designee may vote,
consent or otherwise act.
SECTION 13. COMPENSATION
The Trust agrees to pay to the Custodian compensation for its services as
set forth in Schedule A hereto attached, or as shall be set forth in written
amendments to such Schedule approved by the Trust and the Custodian from time to
time.
SECTION 14. CORPORATE ACTIONS
The Custodian will exercise Best Efforts to forward to the Trust in a
timely manner all notices of stockholder meetings, proxy statements, annual
reports, conversion notices, call notices, or other notices or written materials
of any kind (excluding stock certificates and dividend and interest payments)
received by the Custodian as registered owner of Securities ("notices and
materials"). The Trust and its investment adviser have primary responsibility
for taking action on such notices and materials.
Upon receipt of warrants or rights issued in connection with the assets of
the Trust, the Custodian shall enter into its ledgers appropriate notations
indicating such receipt and shall notify the Trust of such receipt. However,
the Custodian shall have no obligation to take any other action with respect to
such warrants or rights, except as directed in Written or Oral Instructions.
SECTION 15. BOOKS AND RECORDS
The Custodian acknowledges and agrees that all books and records maintained
for the Trust in any capacity under this Agreement are the property of the Trust
and may be inspected by the Trust or any authorized regulatory agency at any
reasonable time. Upon request all such books and records will be surrendered
promptly to the Trust. The Custodian agrees to make available upon request and
to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act any
records related
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to services provided under this Agreement and required to be maintained by Rule
31a-1 of such Act.
SECTION 16. LIABILITY OF CUSTODIAN
The Custodian assumes no duty, obligation or responsibility whatsoever with
respect to Securities not deposited with the Custodian.
The Custodian assumes only the duties and obligations specifically set
forth herein, and duties incidental thereto normally performed by custodians of
mutual funds. It specifically assumes no responsibility for the management,
investment or reinvestment of the Securities from time to time owned by the
Trust, whether or not on deposit hereunder. The responsibility for the proper
and timely management, investment and reinvestment of such Securities shall be
that of the Trust and its investment advisor.
The Custodian shall not be liable for any taxes, assessments or
governmental charges that may be levied or assessed upon the Securities held by
it hereunder, or upon the income therefrom. Upon Written or Oral Instructions,
the Custodian may pay any such tax, assessment or charge and reimburse itself
out of the monies of the Trust or the Securities held hereunder.
The Custodian may rely upon the advice of counsel, who may be counsel for
the Trust or for the Custodian, and upon statements of accountants, brokers or
other persons believed by it in good faith to be expert in the matters upon
which they are consulted. The Custodian shall not be liable for any action
taken in good faith reliance upon such advice or statements. The Custodian
shall not be liable for action taken in good faith in accordance with any
Written or Oral Instructions, request or advice of the Trust or its officers, or
information furnished by the Trust or its officers. The Custodian shall not be
liable for any non-negligent action taken in good faith and reasonably believed
by it to be within the powers conferred upon it by this Agreement.
No liability of any kind, other than to the Trust, shall attach to the
Custodian by reason of its custody of the Securities and cash of the Trust under
this Agreement or otherwise as a result of its custodianship. In the event that
any claim shall be made against the Custodian, it shall have the right to pay
the claim and reimburse itself from the assets of the Trust in its hands;
provided, however, that no such reimbursement shall occur unless the Trust is
notified of the claim and is afforded an opportunity to defend the claim, if it
so elects. Except as otherwise provided herein, the Trust shall further agree
to indemnify and hold the Custodian harmless for any loss, claim, damage,
expense or liability arising out of the custodian relationship under this
Agreement; provided such loss, claim, damage, expense or liability is not the
direct result of the Custodian's negligence or willful misconduct.
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SECTION 17. SUB-CUSTODIANS
Upon receipt of Written or Oral Instructions to appoint a Sub-Custodian,
which shall be deemed a Trust approval of the appointment, the Custodian shall
appoint one or more banking institutions licensed and examined by the United
States or any state thereof as Sub-Custodian of Securities and cash of the Trust
from time to time; provided, however, that the Custodian shall have requested
appointment of a Sub-Custodian.
The Custodian shall have no liability to the Trust or any other person by
reason of any act or omission of any Sub-Custodian, and the Trust shall
indemnify the Custodian and hold it harmless from and against any and all
actions, suits and claims, whether groundless or otherwise, and from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liabilities arising directly or indirectly out of or in connection with the
performance of any Sub-Custodian; provided, however, that the Custodian shall,
and hereby does, assign to the Trust any and all claims for any losses, costs,
expenses, or damages that may be incurred by the Trust by reason of the
negligence, gross negligence or misconduct of any Sub-Custodian, or by reason of
the failure of a Sub-Custodian to perform in accordance with any applicable
agreement, including instructions of the Custodian of the Trust. The Custodian
shall be under no obligation to prosecute or to defend any action, suit or claim
arising out of, or in connection with, the performance of any Sub-Custodian, if,
in the opinion of the Custodian's counsel, such action will involve the
Custodian in expense or liability. The Trust shall, upon request, furnish the
Custodian with satisfactory indemnity against such expense or liability, and
upon request of the Custodian, the Trust shall assume the entire defense of any
action, suit, or claim subject to the foregoing indemnity.
The Trust shall pay all fees and expenses of any Sub-Custodian.
SECTION 18. EFFECTIVENESS, AMENDMENT, TERMINATION
(a) This Agreement shall become effective as of the date set forth on the
first page hereof.
(b) This Agreement may be amended from time to time by a written
supplemental agreement executed by the Trust and the Custodian.
(c) This Agreement may be terminated by either party upon notice to the
other. The termination shall become effective at the time specified in the
notice but no earlier than sixty (60) days after the date of the notice. Upon
notice of termination, the Trust shall use Best Efforts to obtain a successor
custodian. If a successor custodian is not appointed within sixty (60) days
after the date of the notice of termination, the Board shall, by resolution,
designate the Trust as its own custodian. Each successor custodian shall be a
person qualified to serve under the 1940 Act. Promptly following receipt of
written notice from the Trust of the appointment of a successor custodian and
receipt of Written or Oral Instructions, the Custodian shall deliver upon
payment of the Custodian's reasonable charges and disbursements and any
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other amounts due all Securities and cash it then holds directly to the
successor custodian and shall, upon request of the Trust and the successor
custodian, execute and deliver to the successor custodian an instrument approved
by its counsel transferring to the successor custodian all the rights, duties
and obligations of the Custodian, transfer to the successor custodian the
originals or copies of all books and records maintained by the Custodian
hereunder and cooperate with, and provide reasonable assistance to, the
successor custodian in the establishment of the books and records necessary to
carry out its responsibilities hereunder. If the Board fails to designate a
successor custodian or to designate the Trust as its own custodian within sixty
(60) days after the date of the notice of termination, the Custodian may, at the
expense of the Trust, apply to the Federal District Court for the Commonwealth
of Massachusetts for further direction as to the disposition of the Trust's
assets. Notwithstanding the termination of this Agreement, the Custodian shall
be obligated to safeguard the assets of the Trust and may change reasonable and
customary fees for doing so pending receipt by the court or the Trust of
instructions for delivery of all securities and cash held, but the Custodian
shall have no obligation to process any other transactions or perform any other
custodial functions following termination of this Agreement. Upon delivery of
the Securities and other assets of the Trust and compliance with the other
requirements of this Section 18, the Custodian shall have no further duty or
liability hereunder. Every successor custodian appointed hereunder shall
execute and deliver an appropriate written acceptance of its appointment and
shall thereupon become vested with the rights, powers, obligations and custody
of the predecessor custodian.
SECTION 19. BUSINESS DAYS
Nothing contained in this Agreement is intended to or shall require the
Custodian or Sub-Custodian in any capacity hereunder to perform any functions or
duties on any holiday, weekend or weekday on which the Custodian, the Sub-
Custodian or the New York Stock Exchange is closed or permitted by law to be
closed. Functions or duties normally scheduled to be performed on such days
shall be performed on, and as of, the next business day on which both the New
York Stock Exchange and the Custodian are open, unless otherwise required by
law.
SECTION 20. MISCELLANEOUS
(a) This Agreement may be executed in more than one counterpart, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
(b) This Agreement shall extend to and bind the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by the Trust without the written consent of the Custodian, or
by the Custodian without the written consent of the Trust, authorized or
approved by a resolution of the Board. Notwithstanding the foregoing, either
party may assign this Agreement without the consent of the other party so long
as the assignee is an affiliate, parent or subsidiary of the assigning party and
the
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assignee of the Custodian is qualified to serve as custodian under the 1940 Act.
(c) Headings in this Agreement are included for convenience only and are
not to be used to construe or interpret this Agreement.
(d) This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts.
WITNESS the following signatures:
THE XXXXXX TRUST
BY:
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Xxxx X. Xxxxxx
President
THE FIRST NATIONAL BANK OF BOSTON
BY:
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TITLE:
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LOGO
1993 MUTUAL FUND
MASTER FEE SCHEDULE
XXXXXX TRUST U.S. ASSETS
CUSTODIAN FEES
ANNUAL ADMINISTRATIVE FEE - BILLED MONTHLY
2 basis points for the first $100 million of assets
1.5 basis point for the next $100 million of assets
1 basis points for the next $800 million of assets
HOLDINGS CHARGE
Waived
PORTFOLIO TRANSACTIONS
DTC $12.00
FBE $12.00
FNBB Repurchase Agreement $10.00
BKB Sweep Transactions $3.50
VRDN $20.00
Physical Transactions $20.00
Options $25.00
PTC
Monthly Holding Charge $3.00
Buy/Sell Transaction $15.00
Monthly Principal and Interest
Per Pool $4.50
GLOBAL FEES
Unbundled by Country / Upon Request
OUT OF POCKET EXPENSE AS INCURRED INCLUDED BUT NOT LIMITED TO:
Postage, Insurance, Courier, Expedited Mail, Duplicating, Fax Charges, Wires in
and out, Micro fiche, Stop Payments, etc.
CREDIT FOR BALANCES
Based on 50% of the 90 day U.S. Treasury Xxxx rate, less Federal Reserve
Requirements and F.D.I.C. assessments, determine monthly. No credit carried
forward.
OVERDRAFT RECOVERY
Overdraft charge will be calculated on the actual overdraft incurred plus
Federal Reserve requirements and F.D.I.C. assessments.
TERM OF CONTRACT
Guaranteed for one year
The First National Bank of Boston The Xxxxxx Trust
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/s/ Xxxxxx Chadbonnier /s/ Xxxx X. Xxxxxx
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title: Senior Manager title: President
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date: January 5, 1993 date: January 20, 1993
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