-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BGisxhJHsP8rpkZ3l7L9o/j7DMudKLhCbeD5WBLKZm34qPMyXVKo0tevHxc4E9RN q5XXsb69VsVouOiUr70Rcw== 0000950156-96-000208.txt : 19960229 0000950156-96-000208.hdr.sgml : 19960229 ACCESSION NUMBER: 0000950156-96-000208 CONFORMED SUBMISSION TYPE: POS AMI PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960228 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CAPITAL EXCHANGE FUND INC CENTRAL INDEX KEY: 0000017147 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 042385053 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AMI SEC ACT: 1940 Act SEC FILE NUMBER: 811-01339 FILM NUMBER: 96527149 BUSINESS ADDRESS: STREET 1: 24 FEDERAL ST CITY: BOSTON STATE: MA ZIP: 02110 BUSINESS PHONE: 6174828260 MAIL ADDRESS: STREET 1: ONE BEACON ST CITY: BOSTON STATE: MA ZIP: 02108 POS AMI 1 FORM N-1A PEA NO. 19 As filed with the Securities and Exchange Commission on February 28, 1996 1940 Act File No. 811-1339 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 FORM N-lA REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 X Amendment No. 19 X CAPITAL EXCHANGE FUND, INC. (Exact Name of Registrant as Specified in Charter) 24 Federal Street, Boston, Massachusetts 02110 ---------------------------------------------- (Address of Principal Executive Offices) (617) 482-8260 -------------- (Registrant's Telephone Number including Area Code) THOMAS OTIS, Clerk 24 Federal Street, Boston, Massachusetts 02110 ---------------------------------------------- (Name and address of agent for service) PART A INFORMATION REQUIRED IN A PROSPECTUS Responses to Items 1, 2, 3 and 5A have been omitted pursuant to Paragraph 4 of Instruction F of the General Instructions to Form N-1A. Item 4. General Description of Registrant (a)(i) Capital Exchange Fund, Inc. ( the "Registrant") is an open-end diversified management investment company organized on October 14, 1965 as a Massachusetts corporation. (ii) The investment objective of the Registrant is to achieve long-term, after-tax returns for its shareholders through investing in a diversified portfolio of equity securities. This objective is nonfundamental but the Directors intend to submit any proposed change which would be material to shareholders for approval. The Registrant intends to achieve its investment objective by investing in Tax-Managed Growth Portfolio (the "Portfolio") (File No. 811-7409). The Registrant and the Portfolio have the same investment policies and restrictions, and, therefore, the Registrant incorporates by reference the Portfolio's Registration Statement under the Investment Company Act of 1940 (the "1940 Act") on Form N-1A as previously filed electronically with the Securities and Exchange Commission (the "Commission") on November 2, 1995 (Accession No. 0000898432-95-000362). (b) The Registrant incorporates the information set forth under Item 4 of the Registration Statement of the Portfolio herein by reference. (c) The Registrant incorporates the information set forth under Item 4 of the Registration Statement of the Portfolio herein by reference. Item 5. Management of the Fund (a) The Board of Directors has overall responsibility for management of the Registrant. (b) Inapplicable. (c) Inapplicable. (d) Eaton Vance Management ("Eaton Vance" or "Administrator") acts as Administrator of the Registrant, but currently receives no compensation for providing administrative services to the Registrant. As Administrator, Eaton Vance provides the Registrant with general office facilities and supervises the overall administration of the Registrant. (e) The transfer and dividend disbursing agent is First Data Investor Services Group, BOS725, P. 0. Box 1559, Boston, Massachusetts 02104. (f) The Registrant's ratio of expenses to average net assets for the fiscal year ended October 31, 1995 was 0.76%. (g) Inapplicable. Item 6. Capital Stock and Other Securities No change from the information set forth in Item 6 of Form N-1A, filed as Amendment No. 8 to the Registration Statement under the 1940 Act, File No. 811-1339, which information is incorporated herein by reference. In addition, whenever the Registrant as an investor in the Portfolio is requested to vote on matters pertaining to the Portfolio (other than the termination of the Portfolio's business, which may be determined by the Trustees of the Portfolio without investor approval), the Registrant will hold a meeting of shareholders and will vote its interest in the Portfolio for or against such matters proportionately to the instructions to vote for or against such matters received from shareholders. The Registrant shall vote shares for which it receives no voting instructions in the same proportion as the shares for which it receives voting instructions. Other investors in the Portfolio may alone or collectively acquire sufficient voting interests in the Portfolio to control matters relating to the operation of the Portfolio, which may require the Registrant to withdraw its investment in the Portfolio or take other appropriate action. Item 7. Purchase of Securities Being Offered Inapplicable. Registrant has not offered its shares for sale subsequent to its initial public offering in 1965. Item 8. Redemption or Repurchase of Registrant's Shares A shareholder has the right to redeem fund shares by delivering to First Data Investor Services Group, BOS725, P. 0. Box 1559, Boston, MA 02104, either share certificates, or a stock power if no certificates have been issued, in good order for transfer, with a separate written request for redemption. Redemption will be made at the net asset value next computed after such delivery. Good order means that the certificates or stock powers must be endorsed by the record owner(s) exactly as the shares are registered and the signature(s) must be guaranteed by a member of either the Securities Transfer Association's STAMP program or the New York Stock Exchange's Medallion Signature Program, or certain banks, savings and loan institutions, credit unions, securities dealers, securities exchanges, clearing agencies and registered securities associations acceptable to First Data Investor Services Group. In addition, in some cases, good order may require the furnishing of additional documents such as where shares are registered in the name of a corporation, partnership or fiduciary. Payment will be made within seven days of the receipt of the aforementioned documents. In addition to the redemption of shares in the manner described above, the Registrant, for the convenience of its shareholders, has authorized Eaton Vance to act as its agent in the repurchase of shares. Eaton Vance will normally accept orders to repurchase shares by wire or telephone from investment dealers for their customers at the net asset value next computed after receipt of the order by the dealer if such order is received by Eaton Vance prior to its close of business that day. It is the dealer's responsibility to promptly transmit the repurchase order to Eaton Vance. These repurchase arrangements do not involve a charge to the shareholder by either the Registrant or its agent; however, investment dealers may make a charge to the shareholder. Payment will be made within seven days of the receipt of an order to repurchase provided that the certificates, or a stock power if no certificates have been issued, have been delivered to First Data Investor Services Group in good order as described above. The Registrant reserves the right to pay the redemption or repurchase price in whole or in part by a distribution of portfolio securities in lieu of cash if, in the opinion of management, it seems advisable to do so; normally, when the redemption or repurchase price equals or exceeds $2,500 portfolio securities will be used by the Registrant. Any portfolio securities so distributed will be valued at the figure at which they were appraised in computing the net asset value of Registrant's shares. If the portfolio securities so distributed are sold by the redeeming shareholder he or she will incur brokerage commissions or other transaction costs in connection with such sale. The net asset value is determined by Investors Bank & Trust Company ("IBT")(as agent for the Registrant) in the manner authorized by the Directors of the Registrant. Briefly, this determination is made as of the close of trading (normally at 4:00 P.M. New York time) on the New York Stock Exchange (the "Exchange") each business day on which the Exchange is open for trading, and is accomplished by dividing the number of outstanding shares of the Registrant into its net worth (the excess of its investment in the Portfolio over its liabilities). Item 9. Pending Legal Proceeding Inapplicable. PART B INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION Item 10. Cover Page Inapplicable. Item 11. Table of Contents Inapplicable. Item 12. General Information and History Until October 31, 1995, the Registrant invested in a portfolio of securities. Since then, it invests in the Portfolio. Item 13. Investment Objectives and Policies (a) - (c) The Registrant incorporates the information set forth under Item 13 of the Portfolio's Registration Statement herein by reference. (d) Inapplicable. Item 14. Management of the Fund The Registrant's Directors and officers are listed below. Except as indicated, each individual has held the office shown or other offices in the same company for the last five years. Unless otherwise noted, the business address of each Director and officer is 24 Federal Street, Boston, Massachusetts, 02110, which is also the address of the Registrant's investment advisor, Eaton Vance Management ("Eaton Vance"); Eaton Vance's wholly-owned subsidiary, Boston Management and Research ("BMR"); Eaton Vance's parent, Eaton Vance Corp. ("EVC"); and of Eaton Vance's and BMR's Trustees, Eaton Vance, Inc. ("EV"). Eaton Vance and EV are both wholly-owned subsidiaries of EVC. Those directors and officers who are "interested persons" of the Registrant, Eaton Vance, BMR, EVC, or EV as defined in the 1940 Act, by virtue of their affiliation with or stockholdings of any one or more of, the registrant, Eaton Vance, BMR, EVC or EV are indicated by an asterisk(*). Item 14. (a) and (b) (1) (2) (3) Position Held Principal Occupations Name and Address with Registrant during Past 5 Years - ---------------- --------------- ------------------- Landon T. Clay (69)* President & Chairman of the Board and Director Director of EVC and EV; Chairman, Eaton Vance, and BMR. Donald R. Dwight (64) Director President, Dwight Partners, Clover Mill Lane Inc. (since 1988) (a corporate Lyme, New Hampshire relations and communications company); Chairman of the Board of Newspapers of New England, Inc. (since 1983). Samuel L. Hayes, III (61) Director Jacob H. Schiff, Professor Harvard University Graduate of Investment Banking School of Business Harvard University Graduate Administration School of Business Soldiers Field Road Administration. Boston, Massachusetts Norton H. Reamer (60) Director President and Director, United One International Place Asset Management Corporation Boston, Massachusetts (a holding company owning institutional investment management firms); Chairman, President and Director, UAM Funds (mutual funds). John L. Thorndike (69) Director Director, Fiduciary Trust 175 Federal Street Company. Boston, Massachusetts Jack L. Treynor (66) Director Investment Adviser and 504 Via Almar Consultant. Palos Verdes Estates, California James B. Hawkes (54) Vice President Executive Vice President and Director, EVC and EV; Executive Vice President of Eaton Vance and BMR. Duncan W. Richardson (38) Vice President Vice President, Eaton Vance, EV and BMR. Item 14. (a) and (b) Continued (1) (2) (3) Position Held Principal Occupations Name and Address with Registrant during Past 5 Years - ---------------- --------------- ------------------- Thomas Otis (64) Clerk Vice President and Secretary, EVC, Eaton Vance, EV and BMR. James L. O'Connor (50) Treasurer Vice President, Eaton Vance, EV and BMR. Janet E. Sanders (60) Assistant Treasurer Vice President, Eaton Vance, & Assistant Clerk EV and BMR. (since 2/26/90) A. John Murphy (33) Assistant Clerk Assistant Vice President, (since 3/27/95) Eaton Vance, BMR and EV (since 3/1/94) employee of Eaton Vance (since March, 1993); State Regulations Supervisor, The Boston Company (1991-1993); Registration Specialist, Fidelity Management & Research Co. (1986-1991). Eric G. Woodbury (38) Assistant Clerk Vice President of Eaton Vance, (since 6/19/95) BMR and EV and employee of Eaton Vance (since February, 1993); formerly associate at Dechert, Price & Rhoads and Gaston Snow & Ely Bartlett. Messrs. Thorndike (Chairman), Hayes and Reamer are members of the Special Committee of the Board of Directors of the Registrant. The Special Committee's functions include a continuous review of the Registrant's investment advisory agreement with the investment adviser, making recommendations to the Board regarding the compensation of those Directors who are not members of the investment adviser's organization, and making recommendations to the Board regarding candidates to fill vacancies, as and when they occur, in the ranks of those Directors who are not "interested persons" of the Registrant or the investment adviser. Messrs. Treynor (Chairman) and Dwight are members of the Audit Committee of the Board of Directors. The Audit Committee's functions include making recommendations to the Board regarding the selection of the independent public accountants, and reviewing with such accountants and the Treasurer of the Registrant matters relative to accounting and auditing practices and procedures, accounting records, internal accounting controls, and the functions performed by the custodian, transfer agent and dividend disbursing agent of the Registrant. Item 14. (c) The fees and expenses of the Directors of the Registrant who are not members of the Eaton Vance organization (noninterested Directors) are paid by the Registrant. (The Directors of the Registrant who are members of the Eaton Vance organization receive no compensation from the Registrant.) During the fiscal year ended October 31, 1995, the noninterested Directors of the Registrant received the following compensation in their capacities as Directors from the Registrant, and, for the year ended December 31, 1995, received the following compensation in their capacities as Directors and/or Trustees from the funds in the Eaton Vance fund complex(1): Aggregate Compensation Total Compensation Name from Registrant from Trust and Fund Complex ---- ---------------- --------------------------- Donald R. Dwight $ 1,244(2) $ 135,000(4) Samuel L. Hayes, III 1,297(3) 150,000(5) Norton H. Reamer 1,329 135,000 John L. Thorndike 1,412 140,000 Jack L. Treynor 1,318 140,000 (1) The Eaton Vance fund complex consists of 219 registered investment companies or series thereof. (2) Includes $417 deferred compensation. (3) Includes $393 deferred compensation. (4) Includes $35,000 deferred compensation. (5) Includes $33,750 deferred compensation. Directors of the Registrant that are not affiliated with the Investment Adviser may elect to defer receipt of all or a percentage of their annual fees in accordance with the terms of a Deferred Compensation Plan (the "Plan"). Under the Plan, an eligible Director may elect to have his deferred fees invested by the Registrant in the shares of one or more funds in the Eaton Vance Family of Funds, and the amount paid to the Directors under the Plan will be determined based upon the performance of such investments. Deferral of Directors' fees in accordance with the Plan will have a negligible effect on the Registrant's assets, liabilities, and net income per share, and will not obligate the Registrant to retain the services of any Director or obligate the Registrant to pay any particular level of compensation to the Director. The Registrant does not have a retirement plan for its Directors. Item 15. Control Persons and Principal Holders of Securities (a) Inapplicable. (b) As of January 31, 1996, the Directors and officers of the Registrant, as a group, owned in the aggregate less than 1% of the outstanding shares of the Registrant. To the knowledge of the Registrant, no person owned beneficially or of record 5% or more of its stock, except the following shareholders who owned of record the percentages of outstanding shares indicated after their names, as of January 31, 1996: Patterson & Co., Philadelphia, PA (11.10%); Leonard G. Carpenter, C. Curtis Lee and David R. Brink, Trustees U/A dated 11/16/79 Geraldine K. Carpenter Living Trust, Wayzata, MN (9.56%); and Arthur F. Albert, Trustee Arthur F. Albert Trust U/A dated 10/3/78, Glenview, IL (6.23%). Item 16. Investment Advisory and Other Services (a) - (c) Inapplicable. (d) Eaton Vance serves as Administrator of the Registrant, but currently receives no compensation for providing administrative services to the Registrant. Under its agreement with the Registrant, Eaton Vance has been engaged to administer the Fund's affairs, subject to the supervision of the Board of Directors, and shall furnish for the use of the Registrant office space and all necessary office facilities, equipment and personnel for administering the affairs of the Registrant. (e)(f) and (g) Inapplicable. (h) and (i) Investors Bank & Trust Company ("IBT"), 89 South Street, Boston, Massachusetts, has been the custodian of the Registrant since 1985. IBT has custody of all cash and securities of the Registrant, maintains the Registrant's general ledger and computes the daily per share net asset value. In such capacity it attends to details in connection with the sale, exchange, substitution, transfer or other dealings with the Registrant's investments, receives and disburses all funds, and performs various other ministerial duties upon receipt of proper instructions from the Registrant. IBT charges fees which are competitive within the industry. A portion of the fee relates to custody, bookkeeping and valuation services and is based upon a percentage of the Registrant's net assets and a portion of the fee relates to activity charges, primarily the number of portfolio transactions. These fees are then reduced by a credit for cash balances of the particular investment company at the custodian equal to 75% of the 91-day, U.S. Treasury Bill auction rate applied to the particular invstment company's average daily collected balances for the week. Landon T. Clay, a Director of EVC and an officer, Trustee or Director of other members of the Eaton Vance organization, owns approximately 13% of the voting stock of Investors Financial Services Corp., the holding company parent of IBT. For the fiscal year ended October 31, 1995, IBT was paid $52,555. Deloitte & Touche LLP, 125 Summer Street, Boston, Massachusetts are the independent certified public accountants for the Registrant. As such they provide customary professional services in connection with the audit function for a management investment company, including services leading to the expression of an opinion on the financial statements in the annual report to shareholders and preparation of the Registrant's federal tax returns. Item 17. Brokerage Allocation and Other Practices (a) - (e) Inapplicable. Item 18. Capital Stock and Other Securities (a) No change from the information set forth in Item 18(a) of Form N-1A, filed as Amendment No. 8 to the Registration Statement under the 1940 Act, File No. 811-1339, which information is incorporated herein by reference. (b) Inapplicable. Item 19. Purchase, Redemption and Pricing of Securities Being Offered (a) No change from the information set forth in Item 19(a) of Form N-1A, filed as Amendment No. 8 to the Registration Statement under the 1940 Act, File No. 811-1339, which information is incorporated herein by reference. (b) The net asset value of each share of the Registrant outstanding is determined by the Board of Directors or its delegate not less frequently than once on each business day (which term means each day on which the net asset value of shares of the Registrant is required to be computed by the provisions of the 1940 Act or rules or regulations promulgated thereunder) and the net asset value as so determined shall become effective at such time as the Board of Directors or its delegate may determine. The Board of Directors may delegate any of its powers and duties with respect to the determination of net asset value and appraisal of assets and liabilities. Currently the net asset value is determined once each business day by IBT, as agent for the Registrant, as of the close of the Exchange. The Board of Directors or its delegate may cause the net asset value per share last determined to be determined again, and may determine the time when such redetermined net asset value may become effective. Any such redetermination may be made by appraisal, or by estimate based upon changes in the market value of representative or selected securities or in recognized market averages or in other standard market data since the last determination. The Board of Directors may declare a suspension of the determination of net asset value for the whole or any part of any period with respect to which an open-end investment company may declare such a suspension not inconsistent with the provisions of the 1940 Act or rules or regulations promulgated thereunder. Such suspension shall take effect at such time as the Board of Directors shall specify but not later than the close of business on the business day next following the declaration, and thereafter there shall be no determination of net asset value until the Board of Directors shall declare the suspension at an end, except that the suspension shall terminate in any EVent when the conditions precedent prescribed by the 1940 Act or rules or regulations promulgated thereunder to the declaration of such a suspension shall have terminated. The net asset value of each share of the Registrant as of any particular time shall be the quotient (adjusted to the nearer cent) obtained by dividing the value, as of such time, of the net assets of the Registrant (i.e. the value of the assets of the Registrant less its actual and accrued liability exclusive of capital and surplus) by the total number of shares outstanding (exclusive of treasury shares) at such time, all as determined by the Board of Directors or its delegate. In appraising the liabilities of the Corporation the Board of Directors or its delegate may include in liabilities such reserves for taxes, estimated expenses and contingencies as the Board or its delegate deems fair and reasonable under the circumstances. All determinations of net asset value and appraisals of assets and liabilities made in good faith by the Board of Directors or its delegate shall be binding and conclusive upon all stockholders and other persons interested. The Registrant may issue shares at net asset value in connection with any merger or consolidation with, or acquisition of the assets of, any investment company or personal holding company, subject to the requirements of the 1940 Act. The information set forth under Item 8 hereof is incorporated herein by reference. (c) Inapplicable. Item 20. Tax Status Under the provisions of Subchapter M of the Internal Revenue Code, an investment company, such as the Registrant, which distributes to its shareholders for any year substantially all of its net investment income pays no federal income or excise taxes on such income as to that year. The Registrant met the requirements of Subchapter M for the taxable year ended October 31, 1995 and intends to meet such requirement for the taxable year ending October 31, 1996. Dividends from net investment income are paid at least quarterly. These dividends are paid in shares of the Registrant computed at net asset value, subject to an option to each shareholder to elect to be paid in cash. Such dividends from net investment income are taxable to the shareholders at ordinary income rates for federal income tax purposes. Net realized long-term capital gains are normally retained by the Registrant, and the Registrant pays the federal tax thereon on behalf of shareholders. When this is done the shareholder includes in his personal income tax return his proportionate share of such gains, takes a credit for the payment of taxes thereon, and increases the tax cost basis of his shares by an amount equal to such gains less the taxes paid. Due to regulations imposed by the Internal Revenue Service the Registrant is required to distribute net realized long-term capital gains (computed on the basis of the one-year period ending on October 31 of such year) and 100% of any income from the present year that was not paid out during such year and on which the Fund was not taxed. The Registrant therefore reserves the right to distribute such capital gains when required. The Registrant currently plans to continue to pay dividends at least quarterly from its net investment income and retain realized net long-term capital gains as outlined above. However, Registrant reserves the right, in its discretion, to distribute such capital gains in shares of the Registrant at net asset value, or at the option of each shareholder, in cash. Item 21. Underwriters Inapplicable, inasmuch as Registrant does not make a continuous offering of its shares. Item 22. Calculation of Performance Data Inapplicable. Item 23. Financial Statements Registrant incorporates by reference the audited financial information for the Fund contained in the Fund's Annual Report to shareholders for the fiscal year ended October 31, 1995 as previously filed electronically with the Securities and Exchange Commission on December 19, 1995 (Accession Number 0000950156-95-000873). PART C OTHER INFORMATION Item 24. Financial Statements and Exhibits (a) INCLUDED IN ITEM 23 OF THE REGISTRANT'S STATEMENT OF ADDITIONAL INFORMATION (Form N-1A, Part B) INCORPORATED BY REFERENCE TO THE ANNUAL REPORT FOR CAPITAL EXCHANGE FUND, INC., DATED October 31, 1995, AS FILED ELECTRONICALLY ON DECEMBER 19, 1995 WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO SECTION 30(b)(2) OF THE INVESTMENT COMPANY ACT OF 1940 (Accession No. 0000950156-95-000873) which contain the following: Portfolio of Investments, October 31, 1995 Statement of Assets and Liabilities, October 31, 1995 Statement of Operations For The Year Ended October 31, 1995 Statement of Changes In Net Assets For Each of The Two Years In The Period Ended October 31, 1995 Financial Highlights For Each of The Five Years In the Period Ended October 31, 1995 Notes to Financial Statements Independent Auditors' Report (b) Exhibits: (1) Articles of Organization Filed as Exhibit No. 1.1 to Post- incorporating all amendments Effective Amendment No. 7 to to date and currently in effect Registration Statement on Form N-1, File No. 811-1339 and incorporated herein by reference. (2)(a) By-Laws incorporating all Filed herewith. amendments through March 28, 1984 (b) Amendment to By-Laws Filed herewith. dated December 15, 1995 (3) Not Applicable (4) Specimen of each security Filed as Exhibit No. 4a to Post- issued by the Registrant Effective Amendment No. 6 to Registration Statement on Form N-1, File No. 811-1339 and incorporated herein by reference. Item 24. (b) Continued (5) Investment Advisory Filed as Exhibit No. 5 Agreement with Eaton Vance to Post-Effective Amendment No. 14 Management dated to Registration Statement on Form November 1, 1990 N-1A, File No. 811-1339 and incorporated herein by reference. (6) Not Applicable (7) Not Applicable (8)(a) Custodian Agreement dated Filed herewith. December 17, 1990 (b) Amendment to Custodian Agreement Filed herewith. dated October 23, 1995 (9) Not Applicable (10) Legal Opinion of Gaston, Filed as Exhibit No. 9B to Snow, Motley & Holt, dated Amendment No. 4 to February 14, 1966 Registration Statement on Form S-5, File No. 2-24149 and and incorporated herein by reference. (11) Not Applicable (12) Not Applicable (13) Not Applicable (14) Not Applicable (15) Not Applicable (16) Not Applicable Item 25. Persons Controlled by or under Common Control with Registrant Not Applicable Item 26. Number of Holders of Securities (1) (2) Number of Record Title of Class Holders -------------- ---------------- Capital Stock 339 $1.00 par value as of January 31, 1996 Item 27. Indemnification No change from the information set forth in Item 27 of Form N-1A, filed as Post-Effective Amendment No. 8 to the Registration Statement under the 1940 Act, File No. 811-1339, which information is incorporated herewith by reference. Item 28. Business and Other Connections of Investment Adviser In addition to acting as investment adviser to the Portfolio, Boston Management and Research ("BMR") (or an affiliate) also act as investment adviser under other agreements for the following investment companies and also various individual and institutional clients, with combined assets under management of approximately $16 billion. Such investment companies are: Alabama Municipals Portfolio Arizona Limited Maturity Municipals Portfolio Arizona Municipals Portfolio Arkansas Municipals Portfolio California Limited Maturity Municipals Portfolio California Municipals Portfolio Capital Exchange Fund, Inc. Cash Management Portfolio Colorado Municipals Portfolio Connecticut Limited Maturity Municipals Portfolio Connecticut Municipals Portfolio Depositors Fund of Boston, Inc. Diversification Fund, Inc. EV Marathon Gold & Natural Resources Fund Eaton Vance Income Fund of Boston Eaton Vance Municipal Bond Fund L.P. Eaton Vance Prime Rate Reserves Eaton Vance Short-Term Treasury Fund Eaton Vance Tax Free Reserves Emerging Markets Portfolio Fiduciary Exchange Fund, Inc. Florida Insured Municipals Portfolio Florida Limited Maturity Municipals Portfolio Florida Municipals Portfolio Georgia Municipals Portfolio Government Obligations Portfolio Greater China Growth Portfolio Growth Portfolio Hawaii Municipals Portfolio High Income Portfolio High Yield Municipals Portfolio Information Age Portfolio Investors Portfolio Kansas Municipals Portfolio Kentucky Municipals Portfolio Louisiana Municipals Portfolio Maryland Municipals Portfolio Massachusetts Limited Maturity Municipals Portfolio Massachusetts Municipals Portfolio Michigan Limited Maturity Municipals Portfolio Michigan Municipals Portfolio Minnesota Municipals Portfolio Mississippi Municipals Portfolio Missouri Municipals Portfolio National Limited Maturity Municipals Portfolio National Municipals Portfolio New Jersey Limited Maturity Municipals Portfolio New Jersey Municipals Portfolio New York Limited Maturity Municipals Portfolio New York Municipals Portfolio North Carolina Municipals Portfolio Ohio Limited Maturity Municipals Portfolio Ohio Municipals Portfolio Oregon Municipals Portfolio Pennsylvania Limited Maturity Municipals Portfolio Pennsylvania Municipals Portfolio Rhode Island Municipals Portfolio Second Fiduciary Exchange Fund, Inc. Senior Debt Portfolio South Asia Portfolio South Carolina Municipals Portfolio Special Investment Portfolio Stock Portfolio Strategic Income Portfolio Tax-Managed Growth Portfolio Tennessee Municipals Portfolio Texas Municipals Portfolio Total Return Portfolio The Exchange Fund of Boston, Inc. Vance, Sanders Exchange Fund (A California Limited Partnership) Virginia Municipals Portfolio West Virginia Municipals Portfolio Eaton Vance Distributors, Inc., a wholly-owned subsidiary of Eaton Vance is the principal underwriter for each of the investment companies named below: EV Classic California Municipals Fund EV Classic Connecticut Municipals Fund EV Classic Florida Insured Municipals Fund EV Classic Florida Limited Maturity Municipals Fund EV Classic Florida Municipals Fund EV Classic Government Obligations Fund EV Classic Greater China Growth Fund EV Classic Growth Fund EV Classic High Income Fund EV Classic Investors Fund EV Classic Massachusetts Limited Maturity Municipals Fund EV Classic National Limited Maturity Municipals Fund EV Classic National Municipals Fund EV Classic New Jersey Municipals Fund EV Classic New York Limited Maturity Municipals Fund EV Classic New York Municipals Fund EV Classic Pennsylvania Limited Maturity Municipals Fund EV Classic Pennsylvania Municipals Fund EV Classic Rhode Island Municipals Fund EV Classic Senior Floating-Rate Fund EV Classic Special Equities Fund EV Classic Stock Fund EV Classic Strategic Income Fund EV Classic Total Return Fund EV Marathon Alabama Municipals Fund EV Marathon Arizona Limited Maturity Municipals Fund EV Marathon Arizona Municipals Fund EV Marathon Arkansas Municipals Fund EV Marathon California Limited Maturity Municipals Fund EV Marathon California Municipals Fund EV Marathon Colorado Municipals Fund EV Marathon Connecticut Limited Maturity Municipals Fund EV Marathon Connecticut Municipals Fund EV Marathon Emerging Markets Fund EV Marathon Florida Insured Municipals Fund EV Marathon Florida Limited Maturity Municipals Fund EV Marathon Florida Municipals Fund EV Marathon Georgia Municipals Fund EV Marathon Gold & Natural Resources Fund EV Marathon Government Obligations Fund EV Marathon Greater China Growth Fund EV Marathon Greater India Fund EV Marathon Growth Fund EV Marathon Hawaii Municipals Fund EV Marathon High Income Fund EV Marathon High Yield Municipals Fund EV Marathon Information Age Fund EV Marathon Investors Fund EV Marathon Kansas Municipals Fund EV Marathon Kentucky Municipals Fund EV Marathon Louisiana Municipals Fund EV Marathon Maryland Municipals Fund EV Marathon Massachusetts Limited Maturity Municipals Fund EV Marathon Massachusetts Municipals Fund EV Marathon Michigan Limited Maturity Municipals Fund EV Marathon Michigan Municipals Fund EV Marathon Minnesota Municipals Fund EV Marathon Mississippi Municipals Fund EV Marathon Missouri Municipals Fund EV Marathon National Limited Maturity Municipals Fund EV Marathon National Municipals Fund EV Marathon New Jersey Limited Maturity Municipals Fund EV Marathon New Jersey Municipals Fund EV Marathon New York Limited Maturity Municipals Fund EV Marathon New York Municipals Fund EV Marathon North Carolina Municipals Fund EV Marathon Ohio Limited Maturity Municipals Fund EV Marathon Ohio Municipals Fund EV Marathon Oregon Municipals Fund EV Marathon Pennsylvania Limited Maturity Municipals Fund EV Marathon Pennsylvania Municipals Fund EV Marathon Rhode Island Municipals Fund EV Marathon South Carolina Municipals Fund EV Marathon Special Equities Fund EV Marathon Stock Fund EV Marathon Strategic Income Fund EV Marathon Tennessee Municipals Fund EV Marathon Texas Municipals Fund EV Marathon Total Return Fund EV Marathon Virginia Limited Maturity Municipals Fund EV Marathon Virginia Municipals Fund EV Marathon West Virginia Municipals Fund EV Traditional Alabama Municipals Fund EV Traditional Arizona Municipals Fund EV Traditional Arkansas Municipals Fund EV Traditional California Limited Maturity Municipals Fund EV Traditional California Municipals Fund EV Traditional Colorado Municipals Fund EV Traditional Connecticut Limited Maturity Municipals Fund EV Traditional Connecticut Municipals Fund EV Traditional Emerging Markets Fund EV Traditional Florida Insured Municipals Fund EV Traditional Florida Limited Maturity Municipals Fund EV Traditional Florida Municipals Fund EV Traditional Georgia Municipals Fund EV Traditional Government Obligations Fund EV Traditional Greater China Growth Fund EV Traditional Greater India Fund EV Traditional Growth Fund EV Traditional Hawaii Municipals Fund EV Traditional High Yield Municipals Fund Eaton Vance Income Fund of Boston EV Traditional Information Age Fund EV Traditional Investors Fund Eaton Vance Municipal Bond Fund L.P. EV Traditional Kansas Municipals Fund EV Traditional Kentucky Municipals Fund EV Traditional Louisiana Municipals Fund EV Traditional Maryland Municipals Fund EV Traditional Massachusetts Municipals Fund EV Traditional Michigan Limited Maturity Municipals Fund EV Traditional Michigan Municipals Fund EV Traditional Minnesota Municipals Fund EV Traditional Mississippi Municipals Fund EV Traditional Missouri Municipals Fund EV Traditional National Limited Maturity Municipals Fund EV Traditional National Municipals Fund EV Traditional New Jersey Limited Maturity Municipals Fund EV Traditional New Jersey Municipals Fund EV Traditional New York Limited Maturity Municipals Fund EV Traditional New York Municipals Fund EV Traditional North Carolina Municipals Fund EV Traditional Ohio Limited Maturity Municipals Fund EV Traditional Ohio Municipals Fund EV Traditional Oregon Municipals Fund EV Traditional Pennsylvania Municipals Fund EV Traditional South Carolina Municipals Fund EV Traditional Special Equities Fund EV Traditional Stock Fund EV Traditional Tennessee Municipals Fund EV Traditional Texas Municipals Fund EV Traditional Total Return Fund EV Traditional Virginia Municipals Fund EV Traditional West Virginia Municipals Fund Eaton Vance Cash Management Fund Eaton Vance Liquid Assets Fund Eaton Vance Money Market Fund Eaton Vance Prime Rate Reserves Eaton Vance Short-Term Treasury Fund Eaton Vance Tax Free Reserves Massachusetts Municipal Bond Portfolio EVC owns all of the stock of Energex Energy Corporation, which engages in oil and gas operations. In addition, Eaton Vance owns all the stock of Northeast Properties, Inc., which is engaged in real estate investment, consulting and management. EVC owns all of the stock of Fulcrum Management, Inc. and MinVen, Inc. which are engaged in the development of precious metal properties. EVC also owns 24% of the Class A shares of Lloyd George Management (B.V.I.) Limited, a registered investment adviser. EVC, Eaton Vance, BMR and EV may also enter into other businesses. Item 29. Principal Underwriters Inapplicable inasmuch as Registrant does not make a continuous offering of its shares. Item 30. Location of Accounts and Records All applicable accounts, books, and documents required to be maintained by Registrant by Section 31(a) of the Investment Company Act of 1940 and the Rules promulgated thereunder are in the possession and custody of the Registrant's custodian, Investors Bank & Trust Company, 89 South Street, Boston, MA 02111, and the Registrant's transfer agent, First Data Investor Services Group, 53 State Street, Boston, Massachusetts 02104 with the exception of certain corporate documents and portfolio trading documents as prescribed and listed in Rules 31a-1(b), (4), (5), (6), (7), (9), (10), and (11) which are in the possession and custody of the Registrant's Treasurer at 24 Federal Street, Boston, Massachusetts 02110. Registrant is informed that all applicable accounts, books and documents required to be maintained by registered investment advisers are in the custody and possession of the Portfolio's investment adviser, BMR, 24 Federal Street, Boston, Massachusetts 02110. Item 31. Management Services Inapplicable Item 32. Undertakings Inapplicable SIGNATURE Pursuant to the requirements of the Investment Company Act of 1940, the Registrant has duly caused this Amendment to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Boston and Commonwealth of Massachusetts, on the 28th day of February, 1996. CAPITAL EXCHANGE FUND, INC. By /s/ A. John Murphy ------------------------------- A. John Murphy, Assistant Clerk SIGNATURE Tax-Managed Growth Portfolio has duly caused this Amendment to the Registration Statement on Form N-1A of Capital Exchange Fund, Inc. to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Boston and Commonwealth of Massachusetts, on the 28th day of February, 1996. TAX-MANAGED GROWTH PORTFOLIO By /s/ Landon T. Clay ------------------------------- Landon T. Clay, President EXHIBIT INDEX The following exhibits are filed as part of this Registration Statement or incorporated herein by reference pursuant to General Instruction E of Form N-1A. Page in Sequential Exhibit No. Description Numbering System - ----------- ------------ ------------------ (2)(a) By-Laws incorporating all amendments through March 28, 1984. (b) Amendment to By-Laws dated December 15, 1995. (8)(a) Custodian Agreement dated December 17, 1990. (b) Amendment to Custodian Agreement dated October 23, 1995. EX-99.2(A) 2 BY-LAWS EXHIBIT 99.2(a) BY-LAWS OF CAPITAL EXCHANGE FUND, INC. ARTICLE I. Offices. Section 1. Principal Office. Until changed by the Board of Directors, the principal office of the Corporation in the Commonwealth of Massachusetts shall be in the City of Boston, County of Suffolk. Section 2. Other Offices. The Corporation may have offices at such other places without as well as within the Commonwealth as the Board of Directors may from time to time determine. ARTICLE II. Meetings of Shareholders. Section 1. Annual Meeting. A meeting of the shareholders for the purpose of electing a Board of Directors, and for the transaction of such other business as may properly be brought before the meeting, shall be held annually on the third Thursday in March at 11:00 A.M., Boston Time, beginning in 1966 unless said day be a legal holiday, in which case the annual meeting shall be held on the next day thereafter not a legal holiday. The purposes for which the annual meeting is to be held, in addition to those prescribed by law, the Articles of Organization (hereinafter called "the Articles") or the By-Laws, may be specified by the President or the Board of Directors. In the event that such annual meeting is omitted by oversight or otherwise on the date herein provided for, a subsequent meeting may be held in place thereof and any business transacted or elections held at such meeting shall be as valid as if transacted or held at the annual meeting. Such subsequent meeting shall be called in the same manner and as provided for special shareholders' meetings. Section 2. Special Meetings. Special meetings of the shareholders may be called at any time by the President; and shall be called by the President or any Vice President or the Secretary at the request, in writing or by resolution, of a majority of the Board of Directors, or at the written request of the holder or holders of ten per cent (10%) or more of the total number of shares of the then issued and outstanding capital stock of the Corporation entitled to vote at such meeting. Any such request shall state the purposes of the proposed meeting. Section 3. Place of Meeting. Meetings of the shareholders of the Corporation shall be held at the office of the Corporation in Boston, Massachusetts unless a different place within the United States is fixed by the Board of Directors and stated as specified in the respective notices or waivers of notice thereof. Section 4. Notice of Meetings. Notice of all meetings of the shareholders, stating the time, place and the purposes for which the meetings are called, shall be given by the Clerk of the Corporation to each shareholder entitled to vote thereat, and to each shareholder who under the By-Laws is entitled to such notice, by mailing the same, postage paid, addressed to him at his address as it appears upon the books of the Corporation, at least twenty (20) days before the time fixed for the meeting, and the person giving such notice shall make affidavit thereto. If any shareholder shall have failed to inform the Corporation of his post office address, no notice need be sent to him. No notice need be given to any stockholder if a written waiver of notice, executed before or after the meeting by the stockholder or his attorney thereunto authorized, is filed with the records of the meeting. Section 5. Quorum. Except as otherwise provided by law, to constitute a quorum for the transaction of any business at any meeting of shareholders, there must be present, in person or by proxy, holders of a majority of the total number of shares of the then issued and outstanding capital stock of the Corporation entitled to vote at such meeting. If a quorum, as above defined, shall not be present for the purpose of any vote that may properly come before any meeting of shareholders at the time and place of any meeting, the shareholders present in person or by proxy and entitled to vote at such meeting on such matter holding a majority of the shares present entitled to vote on such matter may by vote adjourn the meeting from time to time to be held at the same place without further notice than by announcement to be given at the meeting until a quorum, as above defined, entitled to vote on such matter, shall be present, whereupon any such matter may be voted upon at the meeting as though held when originally convened. Section 6. Organization. At every meeting of the shareholders, the Chairman of the Board of Directors, or in his absence the President, or in the absence of the Chairman of the Board of Directors and the President, a Vice President shall act as chairman of the meeting. In the absence of the Chairman of the Board of Directors and the President and the Vice Presidents, the holders of a majority in number of shares of the shareholders present in person or by proxy shall by vote elect a chairman of the meeting. The Clerk, or in his absence, an Assistant Clerk, or in the absence of the Clerk and an Assistant Clerk, any person appointed by the chairman of the meeting shall act as secretary of the meeting. Section 7. Voting. At each meeting of the shareholders every shareholder of the Corporation shall be entitled to one (1) vote in person or by proxy for each share of the then issued and outstanding capital stock of the Corporation then having voting power in respect of the matter upon which the vote is to be taken, standing in his name on the books of the Corporation at the time of the closing of the transfer books for the meeting, or, if the books be not closed for any meeting, on the record date fixed as provided in Section 4 of Article VI of these By-Laws for determining the shareholders entitled to vote at such meeting, or if the books be not closed and no record date be fixed, at the time of the meeting. The record holder of a fraction of a share shall be entitled in like manner to a corresponding fraction of a vote. All elections of Directors shall be conducted in any manner approved at the meeting of the shareholders at which said election is held and shall be by ballot if so requested by any stockholder entitled to vote thereon. The persons receiving the greatest number of votes shall be deemed and declared elected. Except as otherwise required by law or by the Articles or by these By-Laws all matters shall be decided by a majority of the votes cast, as hereinabove provided, entitled to vote thereon. Section 8. Proxies. Any shareholder entitled to vote upon any matter at any meeting of the shareholders may so vote by proxy; but no proxy which is dated more than six months before the meeting named therein shall be accepted and no such proxy shall be valid after the final adjournment of such meeting. Every proxy shall be in writing subscribed by the shareholder or his duly authorized attorney and shall be dated, but need not be sealed, witnessed or acknowledged. Proxies shall be delivered to the Clerk of the Corporation or person acting as secretary of the meeting before being voted. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by one of them unless at or prior to exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise. ARTICLE III. Board of Directors. Section 1. Number of Directors. The number of Directors of the Corporation shall be fixed for the ensuing year at the first meeting of shareholders and at each annual meeting or meeting held in lieu thereof, and shall be not less than five nor more than fifteen. Directors need not be shareholders. The number of Directors of the Corporation may, from time to time, be increased or decreased within the above limits by vote of a majority of the Directors; provided that no reduction in the number of Directors shall affect any Director whose term of office shall not have expired. The term of office of each Director shall be from the time of his election and qualification until the annual meeting next succeeding his election and until his successor shall have been duly elected and shall have qualified. Section 2. Powers and Duties. The business, property and affairs of the Corporation shall be managed and controlled by or under the direction of the Board of Directors. In each year, at a meeting to be held as soon as practicable after the election of Directors, the Board shall elect the officers of the Corporation as provided in Section 1 of Article V hereof. In addition to the powers and authority by these By-Laws expressly conferred upon it, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles or by these By- Laws directed or required to be exercised or done by the shareholders and may elect or appoint or provide for the appointment of such other officers and agents as it may deem necessary or desirable; provided, however, that the Board of Directors may in its discretion leave vacant for any period any office or offices other than those of President, Treasurer and Clerk. Section 3. Organization. At every meeting of the Board of Directors, the Chairman shall preside and in the absence of the Chairman, the President shall preside. In the absence of both the Chairman and the President a chairman chosen by a majority of the Directors present shall preside. The Secretary, or in his absence, the Clerk, or an Assistant Secretary, or, in the absence of the Clerk and an Assistant Secretary, any person appointed by the chairman of the meeting shall keep the records of the meeting. Section 4. Vacancies and Resignations. Any vacancy in the Board of Directors because of death, resignation, increase in number or otherwise, may be filled either by the Board of Directors at any meeting thereof by a vote of a majority of the Directors in office at the time of such meeting or by vote of the shareholders at an annual meeting or a special meeting called for that purpose, but subject to compliance with Section 16(a) of the Investment Company Act of 1940. Any Director may resign his office at any time by delivering his resignation in writing to the President or to the Clerk or Secretary of the Corporation. Such resignation shall take effect at the date of its receipt or at any later time specified therein; and the acceptance of such resignation, unless required by the terms thereof, shall not be necessary to make such resignation effective. Section 5. Place of Meetings, Offices and Transfer Books. The Board of Directors may hold its meetings and have an office or offices outside of the Commonwealth of Massachusetts, and may, to the extent permitted by law, keep the books and records of the Corporation, and provide for the issue, transfer and registration of its stock, outside of said State at such places as may, from time to time, be designated by the Board of Directors. Section 6. Meetings of the Board. The Board of Directors may in its discretion provide for regular or stated meetings of the Board of Directors. Notice of regular or stated meetings need not be given. Meetings of the Board of Directors other than regular or stated meetings shall be held whenever called by the Chairman, or in the absence of the Chairman, by the President, or by any one of the Directors at the time being in office. Notice of the time and place of each meeting other than regular or stated meetings shall be given by the Secretary or the Clerk or an Assistant Clerk or by the officer or Director calling the meeting and shall be mailed to each Director at least two (2) days before the meeting, or shall be telegraphed, cabled, or wirelessed to each Director at his business address or personally delivered to him at least one (1) day before the meeting; but such notice may be waived by all the Directors. Notice of a meeting need not be given to any Director, if a written waiver of notice, executed by him before or after the meeting, is filed with the records of the meeting, or to any Director who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him. A notice or waiver of notice need not specify the purpose of any special meeting. If it is impractical for the Directors to meet in person the Board may meet by means of a telephone conference circuit to which all Directors are connected or of which all Directors shall have waived notice, which meetings shall be deemed to have been held at a place designated by the Board at the meeting. Section 7. Quorum and Manner of Acting. A majority of the Directors in office shall be present in person at any regular or special meeting of the Board of Directors in order to constitute a quorum for the transaction of business at such meeting and (except as otherwise required by the Articles, by these By-Laws or by statute) the act of a majority of the Directors present at any such meeting, at which a quorum is present, shall be the act of the Board of Directors. In the absence of a quorum, a majority of the Directors present may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. Section 8. Removal of Directors. Any Director may be removed at any time with or without cause, upon the affirmative vote of the holders of a majority of the shares of the then issued and outstanding stock of the Corporation. ARTICLE IV. Committees and Advisory Board. Section 1. Executive and Other Committees. The Board of Directors, by vote of a majority of the whole Board, may elect an Executive Committee to consist of not less than three to hold office until the annual meeting of the shareholders next succeeding their election, which shall have the power to conduct the current and ordinary business of the Corporation while the Board is not session, including the purchase and sale of securities and the designation of securities to be delivered upon redemption of shares of the Corporation, and such other powers of the Board as the Board may, from time to time, delegate to them except those powers which by law, the Articles or these By-Laws they are prohibited from delegating. The Board may also elect from their own number other Committees from time to time, the number composing such Committees, the powers conferred upon the same (but subject to the same limitation) and the term of membership on such Committees to be determined by vote of the Directors. The Board of Directors may designate a chairman for any such Committee; in the absence of such designation the Committee may elect its own chairman. Section 2. Meetings, Quorum and Manner of Acting. The Board of Directors may (1) provide for stated meetings of any Committee, (2) specify the manner of calling and notice required for special meetings of any Committee, (3) specify the number of members of a Committee required to constitute a quorum and the number of members of a Committee required to exercise specified powers delegated to such Committee, (4) authorize the taking of decisions to exercise specified powers by written assent of the requisite number of members of a Committee without a meeting, (5) authorize the members of a Committee to meet by means of a telephone conference circuit to which all members are connected or of which all members shall have waived notice. The Executive Committee shall keep regular minutes of its meetings and records of decisions taken without a meeting, cause them to be recorded in a book designated for that purpose and kept in the office of the Corporation and shall submit such minutes and other records of their proceedings to the Board of Directors at the regular or special meetings of the Board. Section 3. Advisory Board. The Directors may appoint an Advisory Board to consist in the first instance of not less than three members. Members of such Advisory Board shall not be directors or officers and need not be shareholders. Members of this Board shall hold office for such period as the Directors may by resolution provide. Any member of such Board may resign therefrom by a written instrument signed by him which shall take effect upon delivery to the Directors. The Advisory Board shall have no legal powers and shall not perform the functions of directors in any manner, said Board being intended merely to act in an advisory capacity. Such Advisory Board shall meet at such times and upon such notice as the Board of Directors may by resolution provide. ARTICLE V. Officers. Section 1. General Provisions. The Officers of the Corporation shall be a Chairman of the Board of Directors, and a President, a Treasurer and a Clerk, who shall be elected by the Board of Directors at the first meeting of the Board following the annual meeting of shareholders. The Board of Directors may elect or appoint such other officers or agents as the business of the Corporation may require including one or more Vice Presidents, a Secretary and one or more Assistant Treasurers and one or more Assistant Secretaries and one or more Assistant Clerks. The Board of Directors may delegate to any officer or committee the power to appoint any subordinate officers or agents. Section 2. Term of Office and Qualifications. Except as otherwise provided by law, by the Articles or by the By-Laws, the President, the Treasurer and the Clerk shall hold office until the first meeting of the Board of Directors following the annual meeting of shareholders and thereafter until his successor shall have been duly elected and qualified, and all other officers shall hold office until such first meeting unless a shorter term is specified in the vote electing or appointing them. The Chairman of the Board of Directors and the President shall be Directors of the Corporation. The Clerk and Treasurer or the Clerk and Secretary or all three may be the same person. A Vice President and the Treasurer or a Vice President and the Clerk and the Secretary may be the same person, but the offices of Vice President, Clerk and Treasurer shall not be held by the same person. The President shall hold no other office. Except as above provided, any two offices may be held by the same person. Section 3. Removal. The Board of Directors, at a regular meeting or any special meeting of the Board, may remove any director with cause and any officer with or without cause. Any officer or agent appointed by any officer or committee may be removed, either with or without cause, by such appointing officer or committee. A director or officer may be removed for cause only after a reasonable notice and opportunity to be heard before the body proposing to remove him. Section 4. Powers and Duties of the President. In the absence of the Chairman of the Board of Directors, the President shall preside at all meetings of the shareholders. Subject to the Board of Directors and to any Committees of the Board, within their respective spheres, as provided by the Board of Directors, he shall at all times exercise a general supervision and direction over the affairs of the Corporation. He shall have the power to employ attorneys and counsel for the Corporation and to employ such subordinate officers, agents, clerks and employees as he may find necessary to transact the business of the Corporation. He shall also have the power to grant, issue, execute or sign such powers of attorney, proxies or other documents as may be deemed advisable or necessary in furtherance of the interests of the Corporation. The President shall have such other powers and duties as, from time to time, may be conferred upon or assigned to him by Board of Directors. Section 5. Chairman of the Board of Directors. The Chairman of the Board of Directors shall be chosen from among the Directors of this Corporation. When present he shall preside at the meetings of the shareholders and of the Board of Directors. He may call meetings of the Board of Directors and of any committee thereof whenever he deems it necessary. He shall be an executive officer of this Corporation and shall have, with the President, general supervision over the business and policies of this Corporation, subject to the limitations imposed upon the President, as provided in Section 4 of this Article V. Section 6. Powers and Duties of Vice Presidents. In the absence or disability of the Chairman of the Board of Directors and the President, the Vice President, or (if there be more than one Vice President) any Vice President designated by the Board of Directors shall perform all the duties and may exercise any of the powers of the President, subject to the control of the Board. Each Vice President shall perform such other duties as may be assigned to him, from time to time, by the Board or by the President. Section 7. Powers and Duties of the Treasurer. The Treasurer shall be the principal financial and accounting officer of the Corporation. He shall maintain the securities and similar investments of the Corporation in accordance with Article XIII of these By-Laws. He shall render a statement of the condition of the finances of the Corporation to the Board of Directors as often as it shall require the same and he shall in general perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Board of Directors. The Treasurer shall give a bond for the faithful discharge of his duties, if required so to do by the Board of Directors, in such sum and with such surety or sureties as the Board of Directors shall require. Section 8. Powers and Duties of the Clerk. The Clerk shall be a resident of the Commonwealth of Massachusetts unless the Corporation has a resident agent appointed for the purpose of service of process. The Clerk shall keep the minutes of all meetings of the shareholders, in proper books provided for that purpose; he shall have custody of the corporate seal of the Corporation; he shall have charge of the stock transfer books, lists and records unless the same are in the charge of a transfer agent in the Commonwealth of Massachusetts appointed pursuant to Section 3 of Article VI; he or the Secretary shall attend to the giving and serving of all notices by the Corporation in accordance with the provisions of these By-Laws and as required by law; and subject to these By-Laws, he shall in general perform all duties incident to the office of Clerk and such other duties as from time to time may be assigned to him by the Board of Directors. Section 9. Powers and Duties of Secretary. The Secretary, if any, shall keep the minutes of all meetings of the Board of Directors. He shall perform such other duties and have such other powers in addition to those specified in these By-Laws as the Board of Directors shall from time to time designate. If there be no Secretary or Assistant Secretary, the Clerk shall perform the duties of Secretary. Section 10. Powers and Duties of Assistant Treasurers. In the absence or disability of the Treasurer, any Assistant Treasurer designated by the Board of Directors shall perform all the duties, and may exercise any of the powers, of the Treasurer; and the Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors. Each Assistant Treasurer shall give a bond for the faithful discharge of his duties, if required so to do by the Board of Directors, in such sum and with such surety or sureties as the Board of Directors shall require. Section 11. Powers and Duties of Assistant Clerk. In the absence or disability of the Clerk, any Assistant Clerk designated by the Board of Directors shall perform all the duties, and may exercise any of the powers, of the Clerk; and the Assistant Clerks shall perform such other duties as from time to time may be assigned to them by the Board of Directors. Section 12. Powers and Duties of Assistant Secretaries. In the absence or disability of the Secretary, any Assistant Secretary designated by the Board of Directors shall perform all of the duties, and may exercise any of the powers of the Secretary; and the Assistant Secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors. Section 13. Compensation of Officers, Directors and Members of Advisory Board. Subject to Article V of the Articles the compensation of the officers, Directors and members of the Advisory Board shall be fixed from time to time by the Board of Directors or, in the case of officers, by any committee or officer upon whom such power may be conferred by the Board of Directors. No officer shall be prevented from receiving such compensation as such officer by reason of the fact that he is also a Director of the Corporation. ARTICLE VI. Corporate Stock. Section 1. Certificates of Stock. Certificates for shares of the capital stock of the Corporation shall be in such form as shall be approved by the Board of Directors. They shall be numbered in the order of their issue and shall be signed by, or in the name of the Corporation by, the President or any one of the Vice Presidents and by the Treasurer or an Assistant Treasurer and may but need not be sealed with its seal; provided, however, that where such certificate is signed by a transfer agent or a transfer clerk acting on behalf of the Corporation or a registrar other than a Director, officer or employee of the Corporation, the signature of any such President, Vice President, Treasurer or Assistant Treasurer and the corporate seal may be facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on any such certificate or certificates shall cease to be such officer or officers of the Corporation whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signatures shall have been used thereon had not ceased to be such officer or officers of the Corporation. Section 2. Transfer of Stock. Transfers of shares of capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof or by his attorney thereunto authorized by a power of attorney duly executed and filed with the Clerk of the Corporation or a transfer agent, and on the surrender of the certificate or certificates for such shares. Section 3. Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer officers or agencies each in charge of a transfer agent designated by the Board of Directors where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in charge of a registrar, designated by the Board of Directors where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation in respect of which a transfer agent and/or registrar shall have been designated, shall be valid unless countersigned by such transfer agent and/or registered by such registrar. The principal transfer agent shall be in the Commonwealth of Massachusetts and shall have charge of the stock transfer books, lists and records, which shall be kept in Massachusetts in an office which shall be deemed to be the stock transfer office of the Corporation. The Board of Directors may also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. Section 4. Closing of Transfer Books and Fixing Record Date. The Board of Directors may fix in advance a time which shall be not more than sixty (60) days before the date of any meeting of shareholders or the date for the payment of any dividend or the making of any distribution to shareholders or the last day on which the consent or dissent of shareholders may be effectively expressed for any purpose, as the record date for determining the shareholders having the right to notice of and to vote at such meeting, and any adjournment thereof, or the right to receive such dividend or distribution or the right to give such consent or dissent, and in such case only shareholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the Corporation after the record date; or without fixing such record date the Board of Directors may for any of such purposes close the transfer books for all or any part of such period. Section 5. Lost, Destroyed or Mutilated Certificates. The holder of any stock of the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor, and the Board of Directors may, in its discretion, cause a new certificate or certificates to be issued to him, in case of mutilation of the certificate, upon the surrender of the mutilated certificate, or, in case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction, and, in any case, if the Board of Directors shall so determine, upon the delivery of a bond in such form and in such sum and with such surety or sureties as the Board may direct, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate. Section 6. Record of Holder of Stock. The Corporation shall be entitled to treat the person in whose name any share of stock is registered on the books of the Corporation as the owner thereof, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person. ARTICLE VII. Fiscal Year. The fiscal year of the Corporation shall begin the first day of November in each year and shall end on the thirty-first day of October in the following calendar year provided that the Board of Directors may from time to time change the fiscal year. ARTICLE VIII Seal. The Board of Directors shall adopt a corporate seal which shall be in such form and shall have such inscription thereon as the Board of Directors may from time to time prescribe. ARTICLE IX. Waivers of Notice. Whenever any notice whatever is required to be given under the provisions of any statute of the Commonwealth of Massachusetts, under the provisions of the Articles or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. A notice shall be deemed to have been telegraphed, cabled or wirelessed for the purposes of these By-Laws when it has been delivered to a representative of any telegraph, cable or wireless company with instructions that it be telegraphed, cabled or wirelessed. Any notice shall be deemed to be given at the time when the same shall be mailed, telegraphed, cabled or wirelessed. ARTICLE X. Investments; Borrowing and Pledging. Section 1. The authority of the Board of Directors to invest the funds of the Corporation, to borrow money and to pledge securities as provided in the statement of purposes contained in the Articles shall be subject to the following restrictions and limitations: (A) The Corporation shall not purchase the securities of any issuer if such purchase at the time thereof would cause more than five per cent (5%) of the total assets of the Corporation (taken at market value) to be invested in the securities of such issuer. The foregoing limitation shall not apply to investments in Government securities as defined in the Investment Company Act of 1940. (B) The Corporation shall not purchase securities of any issuer if such purchase at the time thereof would cause more than ten per cent (10%) of any class of securities of such issuer to be held by the Corporation. For this purpose all outstanding bonds and other evidences of indebtedness shall be deemed to be a single class of securities of the issuer, and all kinds of stock of an issuer preferred over the common stock as to dividends or in liquidation shall be deemed to constitute a single class regardless of relative priorities, series designations, conversion rights and other differences. (C) The Corporation shall not purchase securities issued by any other investment company or investment trust except by purchase in the open market where no commission or profit to a sponsor or dealer results from such purchase other than the customary broker's commission, or except when such purchase, though not made in the open market, is part of a plan of merger or consolidation. (D) The Corporation shall not purchase securities of any issuer which has a record of less than three (3) years' continuous operation including, however, in such three (3) years the operation of any predecessor company or companies, partnership or individual enterprise if the issuer whose securities are proposed as an investment for funds of the Corporation has come into existence as a result of a merger, consolidation, reorganization, or the purchase of substantially all the assets of such predecessor company or companies, partnership or individual enterprise, provided that nothing in this sub-paragraph D shall prevent (1) the purchase of securities of a company substantially all of whose assets are (a) securities of one or more companies which have had a record of three (3) years' continuous operation, or (b) assets of an independent division of another company, which division has had a record of three (3) years' continuous operation; (2) the purchase of securities of (a) a public utility subject to supervision or regulation as to its rates or charges by a commission or board or officer of the United States or of any state or territory thereof, or of the government of Canada or of any province or territory of Canada or (b) companies operating or formed for the purpose of operating pipe or transmission lines for the transmission of oil, gas or electric energy or like products, provided that no security shall be purchased pursuant to exception (1) or (2) of this sub-paragraph D if such purchase at the time thereof will cause more than five per cent (5%) of the total assets of the Fund (taken at market value) to be invested in securities of companies which would not then be eligible for purchase but for those exceptions. (E) The Corporation shall not purchase or retain in its portfolio any securities issued by an issuer any of whose officers, directors, trustees, or security-holders is an officer or Director of the Corporation, or is a member, officer, director or trustee of the Investment Adviser of the Corporation, if after the purchase of the securities of such issuer by the Corporation one or more of such persons owns beneficially more than one-half of one per cent (1/2%) of the shares or securities, or both (all taken at market value), of such issuer, and such persons owning more than one-half of one per cent (1/2%) of such shares or securities together own beneficially more than five per cent (5%) of such shares or securities, or both (all taken at market value). (F) The Corporation shall not borrow amounts in excess of ten per cent (10%) of the gross assets of the Corporation taken at cost determined in accordance with good accounting practice, and no borrowing shall be undertaken except as a temporary measure for extraordinary or emergency purposes. (G) The Corporation shall not pledge, mortgage, or hypothecate the assets of the Corporation. (H) The Corporation shall not (a) purchase any securities or evidences of interest therein on "margin", that is to say in a transaction in which it has borrowed all or a portion of the purchase price and pledged the purchased securities of evidences of interest therein as collateral for the amount so borrowed; (b) sell or contract to sell any security which it does not own unless by virtue of its ownership of other securities it has at the time of sale a right to obtain securities equivalent in kind and amount to the securities sold and provided that if such right is conditional the sale is made upon the same conditions. ARTICLE XI. Miscellaneous. (A) No officer, Director or member of the Advisory Board of the Corporation, and no member, officer, Director or trustee of the Investment Adviser of the Corporation (as that term is defined in the Investment Company Act of 1940) or of the underwriter of the Corporation, and no Investment Adviser or underwriter of the Corporation shall take long or short positions in the securities issued by the Corporation. (1) The foregoing provision shall not prevent the underwriter from purchasing from the Corporation shares of the Corporation if such purchases are limited (except for reasonable allowances for clerical errors, delays and errors of transmission and cancellation of orders) to purchases for the purpose of filling orders for such shares received by the underwriter, and provided that orders to purchase from the Corporation are entered with the Corporation or the Custodian promptly upon receipt by the underwriter of purchase orders for such shares, unless the underwriter is otherwise instructed by its customer (2) The foregoing provision shall not prevent the underwriter from purchasing shares of the Corporation as agent for the account of the Corporation. (3) The foregoing provision shall not prevent the purchase from the Corporation or from the underwriter of shares issued by the Corporation by any officer, Director, or member of the Advisory Board of the Corporation or by any member, officer, Director or trustee of the Investment Adviser of the Corporation or of the underwriter of the Corporation at the price available to the public generally at the moment of such purchase or, to the extent that any such person is a shareholder, at the price available to shareholders of the Corporation generally at the moment of such purchase. (B) The Corporation shall not lend assets of the Corporation to any officer, Director or member of the Advisory Board of the Corporation, or to any member, officer, Director or trustee of, or person financially interested in the Investment Adviser of the Corporation, or in the underwriter of the Corporation, or to the Investment Adviser of the Corporation or to the underwriter of the Corporation. (C) The Corporation shall not impose any restriction upon the transfer of the shares of the Corporation but this requirement shall not prevent the charging of customary transfer agent fees. (D) In the event that at any time less than a majority of the Directors of the corporation holding office at that time were elected by the shareholders, the Board of Directors or any officer authorized by the By-Laws to call a special meeting of the shareholders shall forthwith cause to be held as promptly as possible and in any event within sixty days a special meeting of the shareholders for the purpose of electing Directors to fill any existing vacancies in the Board of Directors; provided, however, that no such meeting need be held during the sixty-day period preceding the date specified in the By-Laws for the holding of the annual meeting of the shareholders of the Corporation, if permitted by an order of the Securities and Exchange Commission or succeeding governmental authority exempting the delay of such meeting from the prohibition contained in Section 16(a) of the Investment Company Act of 1940. ARTICLE XII. Report to Shareholders. The Board of Directors shall at least semi-annually submit to the shareholders a written financial report of the transactions of the Corporation, including financial statements which shall at least annually be certified by independent public accountants. Such reports shall clearly set forth, in addition to the information required by the Investment Company Act of 1940 to be furnished to shareholders of registered open-end investment companies, a statement of all amounts paid to any security dealers, legal counsel, transfer agent, disbursing agent, registrar or custodian, where such payments are made to a firm, association, trust or corporation having a member, officer, Director or trustee who is an officer, Director of member of the Advisory Board of the Corporation. ARTICLE XIII. Maintenance of Assets The Corporation shall place and maintain its securities and similar investments in the custody of one or more of the following: (1) one or more banks, trust companies, banking institutions or other qualified depositories, (2) one or more companies each of which is a member of a national securities exchange as defined in the Securities Exchange Act of 1934, or (3) the Corporation, in each case subject to the Investment Company Act of 1940 and all applicable rules, regulations and orders as the Securities and Exchange Commission may from time to time prescribe, adopt or issue. Any such custodian may be employed to keep all or any part of the books and accounts of the Corporation, to furnish clerical and accounting services to the Corporation and to determine or compute the net asset value of the shares of the Corporation, and shall perform such acts and services upon such terms and conditions as shall be approved from time to time by the Board of Directors of the Corporation. The Corporation may also employ one or more subcustodians or authorize any such custodian to employ one or more subcustodians, in each case to perform such acts and services upon such terms and conditions as shall be approved from time to time by the Board of Directors of the Corporation. Subject to the Investment Company Act of 1940 and all applicable rules, regulations and orders as said Commission may from time to time prescribe, adopt or issue, the Corporation may (or permit any such custodian or subcustodian to) deposit all or any part of the securities owned by the Corporation in one or more systems for the central handling of securities (including, without limitation, securities depositories, clearing agencies and book-entry systems), pursuant to which system 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 such securities. ARTICLE XIV. Amendments. The By-Laws, or any of them, of the Corporation may be altered, amended or repealed or new By-Laws may be adopted by the vote of the holders of a majority in number of shares of the stock of the Corporation issued, outstanding and entitled to vote, at any annual meeting, or at a special meeting called for the purpose. The Board of Directors of the Corporation, at any regular or special meeting of the Board, may, by a majority vote of the whole Board, adopt or amend supplementary By-Laws provided that notice of the proposed supplementary By-Law shall have been given at a previous meeting of the Board, and provided further that no such supplementary By-Law shall alter, amend or repeal any By-Law in effect at the time of such action. Not later than the time of giving notice of the meeting of shareholders next following the making, amending or repealing by the Board of any such supplementary By-Law, notice thereof stating the substance of such change shall be given to all shareholders entitled to vote on amending the By-Laws. Any such action of the Board of Directors may be amended or repealed by the shareholders, as aforesaid, at any annual meeting or any special meeting called for that purpose. EX-99.2(B) 3 AMENDMENT TO BY-LAWS EXHIBIT 99.2(b) AMENDMENT TO BY-LAWS OF CAPITAL EXCHANGE FUND, INC. December 15, 1995 Pursuant to ARTICLE XIV of the BY-LAWS of Capital Exchange Fund, Inc., (the "Fund") upon vote of a majority of the Directors of the Fund SECTION 1. of ARTICLE II of the BY-LAWS of the Fund was amended to read as follows: SECTION 1. Annual Meeting. A meeting of the shareholders for the purpose of electing a Board of Directors, the Treasurer and the Clerk, and for the transaction of such other business as may properly be brought before the meeting, shall be held annually, on the second Wednesday in April, unless said day be a legal holiday, in which case the annual meeting shall be held on the next day thereafter not a legal holiday. ******************** EX-99.8(A) 4 CUSTODIAN AGREEMENT EXHIBIT 99.8(a) Capital Exchange Fund, Inc. 24 Federal Street Boston, MA 02110 (617) 482-8260 December 17, 1990 Capital Exchange Fund, Inc. hereby adopts and agrees to become a party to the attached Master Custodian Agreement between the Eaton Vance Group of Funds and Investors Bank & Trust Company. CAPITAL EXCHANGE FUND, INC. BY: /s/ Landon T. Clay ---------------------------- President Accepted and agreed to: INVESTORS BANK & TRUST COMPANY BY: /s/ Henry M. Joyce ------------------------------------ Title: Vice President MASTER CUSTODIAN AGREEMENT between EATON VANCE GROUP OF FUNDS and INVESTORS BANK & TRUST COMPANY TABLE OF CONTENTS 1. Definitions .................................................... 1-3 2. Employment of Custodian and Property to be held by it .......... 3-4 3. Duties of the Custodian with Respect to Property of the Fund ........................................... 4 A. Safekeeping and Holding of Property ........................ 4 B. Delivery of Securities ..................................... 4-7 C. Registration of Securities ................................. 7 D. Bank Accounts .............................................. 8 E. Payments for Shares of the Fund ............................ 8 F. Investment and Availability of Federal Funds ............... 8 G. Collections ................................................ 8-9 H. Payment of Fund Moneys ..................................... 9-11 I. Liability for Payment in Advance of Receipt of Securities Purchased ............................ 11 J. Payments for Repurchases of Redemptions of Shares of the Fund ...................................... 11-12 K. Appointment of Agents by the Custodian ..................... 12 L. Deposit of Fund Portfolio Securities in Securities Systems .................................................... 12-14 M. Deposit of Fund Commercial Paper in an Approved Book-Entry System for Commercial Paper ..................... 14-16 N. Segregated Account ......................................... 17 O. Ownership Certificates for Tax Purposes .................... 17 P. Proxies .................................................... 17 Q. Communications Relating to Fund Portfolio Securities ....... 18 R. Exercise of Rights; Tender Offers ......................... 18 -i- S. Depository Receipts ........................................ 19 T. Interest Bearing Call or Time Deposits ..................... 19 U. Options, Futures Contracts and Foreign Currency Transactions ............................................... 19-21 V. Actions Permitted Without Express Authority ................ 21 4. Duties of Bank with Respect to Books of Account and Calculations of Net Asset Value ................................ 22 5. Records and Miscellaneous Duties ............................... 22 6. Opinion of Fund`s Independent Public Accountants ............... 23 7. Compensation and Expenses of Bank .............................. 23 8. Responsibility of Bank ......................................... 23-24 9. Persons Having Access to Assets of the Fund .................... 24 10. Effective Period, Termination and Amendment; Successor Custodian ...................................................... 25 11. Interpretive and Additional Provisions ......................... 26 12. Notices ........................................................ 26 13. Massachusetts Law to Apply ..................................... 26 14. Adoption of the Agreement by the Fund .......................... 26 -ii- MASTER CUSTODIAN AGREEMENT This Agreement is made between each investment company advised by Eaton Vance Management which has adopted this Agreement in the manner provided herein and Investors Bank & Trust Company (hereinafter called "Bank", "Custodian" and "Agent"), a trust company established under the laws of Massachusetts with a principal place of business in Boston, Massachusetts. Whereas, each such investment company is registered under the Investment Company Act of 1940 and has appointed the Bank to act as Custodian of its property and to perform certain duties as its Agent, as more fully hereinafter set forth; and Whereas, the Bank is willing and able to act as each such investment company's Custodian and Agent, subject to and in accordance with the provisions hereof; Now, therefore, in consideration of the premises and of the mutual covenants and agreements herein contained, each such investment company and the Bank agree as follows: 1. Definitions Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings: (a) "Fund" shall mean the investment company which has adopted this Agreement. If the Fund is a Massachusetts business trust, it may in the future establish and designate other separate and distinct series of shares, each of which may be called a "portfolio"; in such case, the term "Fund" shall also refer to each such separate series or portfolio. (b) "Board" shall mean the board of directors/trustees/managing general partners/director general partners of the Fund, as the case may be. (c) "The Depository Trust Company", 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 and which has been specifically approved as a securities depository for the Fund by the Board. (d) "Participants Trust Company", 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 and which has been specifically approved as a securities depository for the Fund by the Board. (e) "Approved Clearing Agency" shall mean any other domestic 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 but only if the Custodian has received a certified copy of a vote of the Board approving such clearing agency as a securities depository for the Fund. (f) "Federal Book-Entry System" shall mean the book-entry system referred to in Rule 17f-4(b) under the Investment Company Act of 1940 for United States and federal agency securities (i.e., as provided in Subpart O of Treasury Circular No. 300, 31 CFR 306, Subpart B of 31 CFR Part 350, and the book-entry regulations of federal agencies substantially in the form of Subpart O). (g) "Approved Foreign Securities Depository" shall mean a foreign securities depository or clearing agency referred to in rule 17f-4 under the Investment Company Act of 1940 for foreign securities but only if the Custodian has received a certified copy of a vote of the Board approving such depository or clearing agency as a foreign securities depository for the Fund. (h) "Approved Book-Entry System for Commercial Paper" shall mean a system maintained by the Custodian or by a subcustodian employed pursuant to Section 2 hereof for the holding of commercial paper in book-entry form but only if the Custodian has received a certified copy of a vote of the Board approving the participation by the Fund in such system. (i) The Custodian shall be deemed to have received "proper instructions" in respect of any of the matters referred to in this Agreement upon receipt of written or facsimile instructions signed by such one or more person or persons as the Board shall have from time to time authorized to give the particular class of instructions in question. Electronic instructions for the purchase and sale of securities which are transmitted by Eaton Vance Management to the Custodian through the Eaton Vance equity trading system and the Eaton Vance fixed income trading system shall be deemed to be proper instructions; the Fund shall cause all such instructions to be confirmed in writing. Different persons may be authorized to give instructions for different purposes. A certified copy of a vote of the Board may be received and accepted by the Custodian as conclusive evidence of the authority of any such person to act and may be considered as in full force and effect until receipt of written notice to the contrary. Such instructions may be general or specific in terms and, where appropriate, may be standing instructions. Unless the vote delegating authority to any person or persons to give a particular class of instructions specifically requires that the approval of any person, persons or committee shall first have been obtained before the Custodian may act on instructions of that class, the Custodian shall be under no obligation to question the right of the person or persons giving such instructions in so doing. 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 Fund shall cause all oral instructions to be confirmed in writing. The Fund authorizes the Custodian to tape record any and all telephonic or other oral instructions given to the Custodian. Upon receipt of a certificate signed by two officers of the Fund as to the authorization by the President and the Treasurer of the Fund accompanied by a detailed description of the communication procedures approved by the President and the Treasurer of the Fund, "proper instructions" may also include communications effected directly between electromechanical or electronic devices provided that the President and Treasurer of the Fund and the Custodian are satisfied that such procedures afford adequate safeguards for the Fund's assets. In performing its duties generally, and more particularly in connection with the purchase, sale and exchange of securities made by or for the Fund, the Custodian may take cognizance of the provisions of the governing documents and registration statement of the Fund as the same may from time to time be in effect (and votes, resolutions or proceedings of the shareholders or the Board), but, nevertheless, except as otherwise expressly provided herein, the Custodian may assume unless and until notified in writing to the contrary that so-called proper instructions received by it are not in conflict with or in any way contrary to any provisions of such governing documents and registration statement, or votes, resolutions or proceedings of the shareholders or the Board. 2. Employment of Custodian and Property to be Held by It The Fund hereby appoints and employs the Bank as its Custodian and Agent in accordance with and subject to the provisions hereof, and the Bank hereby accepts such appointment and employment. The Fund agrees to deliver to the Custodian all securities, participation interests, cash and other assets owned by it, and all payments of income, payments of principal and capital distributions and adjustments received by it with respect to all securities and participation interests owned by the Fund from time to time, and the cash consideration received by it for such new or treasury shares ("Shares") of the Fund as may be issued or sold from time to time. The Custodian shall not be responsible for any property of the Fund held by the Fund and not delivered by the Fund to the Custodian. The Fund will also deliver to the Bank from time to time copies of its currently effective charter (or declaration of trust or partnership agreement, as the case may be), by-laws, prospectus, statement of additional information and distribution agreement with its principal underwriter, together with such resolutions, votes and other proceedings of the Fund as may be necessary for or convenient to the Bank in the performance of its duties hereunder. The Custodian may from time to time employ one or more subcustodians to perform such acts and services upon such terms and conditions as shall be approved from time to time by the Board of Directors. Any such subcustodian so employed by the Custodian shall be deemed to be the agent of the Custodian, and the Custodian shall remain primarily responsible for the securities, participation interests, moneys and other property of the Fund held by such subcustodian. Any foreign subcustodian shall be a bank or trust company which is an eligible foreign custodian within the meaning of Rule 17f-5 under the Investment Company Act of 1940, and the foreign custody arrangements shall be approved by the Board of Directors and shall be in accordance with and subject to the provisions of said Rule. For the purposes of this Agreement, any property of the Fund held by any such subcustodian (domestic or foreign) shall be deemed to be held by the Custodian under the terms of this Agreement. 3. Duties of the Custodian with Respect to Property of the Fund A. Safekeeping and Holding of Property The Custodian shall keep safely all property of the Fund and on behalf of the Fund shall from time to time receive delivery of Fund property for safekeeping. The Custodian shall hold, earmark and segregate on its books and records for the account of the Fund all property of the Fund, including all securities, participation interests and other assets of the Fund (1) physically held by the Custodian, (2) held by any subcustodian referred to in Section 2 hereof or by any agent referred to in Paragraph K hereof, (3) held by or maintained in The Depository Trust Company or in Participants Trust Company or in an Approved Clearing Agency or in the Federal Book-Entry System or in an Approved Foreign Securities Depository, each of which from time to time is referred to herein as a "Securities System", and (4) held by the Custodian or by any subcustodian referred to in Section 2 hereof and maintained in any Approved Book-Entry System for Commercial Paper. B. Delivery of Securities The Custodian shall release and deliver securities or participation interests owned by the Fund held (or deemed to be held) by the Custodian or maintained in a Securities System account or in an Approved Book-Entry System for Commercial Paper account 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 or participation interests for the account of the Fund, but only against receipt of payment therefor; if delivery is made in Boston or New York City, payment therefor shall be made in accordance with generally accepted clearing house procedures or by use of Federal Reserve Wire System procedures; if delivery is made elsewhere payment therefor shall be in accordance with the then current "street delivery" custom or in accordance with such procedures agreed to in writing from time to time by the parties hereto; if the sale is effected through a Securities System, delivery and payment therefor shall be made in accordance with the provisions of Paragraph L hereof; if the sale of commercial paper is to be effected through an Approved Book-Entry System for Commercial Paper, delivery and payment therefor shall be made in accordance with the provisions of Paragraph M hereof; if the securities are to be sold outside the United States, delivery may be made in accordance with procedures agreed to in writing from time to time by the parties hereto; for the purposes of this subparagraph, the term "sale" shall include the disposition of a portfolio security (i) upon the exercise of an option written by the Fund and (ii) upon the failure by the Fund to make a successful bid with respect to a portfolio security, the continued holding of which is contingent upon the making of such a bid; 2) Upon the receipt of payment in connection with any repurchase agreement or reverse repurchase agreement relating to such securities and entered into by the Fund; 3) To the depository agent in connection with tender or other similar offers for portfolio securities of the Fund; 4) To the issuer thereof or its agent when such securities or participation interests 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 or any subcustodian employed pursuant to Section 2 hereof; 5) To the issuer thereof, or its agent, for transfer into the name of the Fund or into the name of any nominee of the Custodian or into the name or nominee name of any agent appointed pursuant to Paragraph K hereof or into the name or nominee name of any subcustodian employed pursuant to Section 2 hereof; 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 or participation interests are to be delivered to the Custodian or any subcustodian employed pursuant to Section 2 hereof; 6) To the broker selling the same for examination in accordance with the "street delivery" custom; provided that the Custodian shall adopt such procedures as the Fund from time to time shall approve to ensure their prompt return to the Custodian by the broker in the event the broker elects not to accept them; 7) 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 of 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 or any subcustodian employed pursuant to Section 2 hereof; 8) In the case of warrants, rights or similar securities, the surrender thereof in connection with 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 or any subcustodian employed pursuant to Section 2 hereof; 9) For delivery in connection with any loans of securities made by the Fund (such loans to be made pursuant to the terms of the Fund's current registration statement), but only against receipt of adequate collateral as agreed upon from time to time by the Custodian and the Fund, 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 securities 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 Treasury, the Custodian will not be held liable or responsible for the delivery of securities loaned by the Fund prior to the receipt of such collateral; 10) For delivery as security in connection with any borrowings by the Fund requiring a pledge or hypothecation of assets by the Fund (if then permitted under circumstances described in the current registration statement of the Fund), provided, that the securities shall be released only upon payment to the Custodian of the monies borrowed, except that in cases where additional collateral is required to secure a borrowing already made, further securities may be released for that purpose; upon receipt of proper instructions, the Custodian may pay any such loan upon redelivery to it of the securities pledged or hypothecated therefor and upon surrender of the note or notes evidencing the loan; 11) When required for delivery in connection with any redemption or repurchase of Shares of the Fund in accordance with the provisions of Paragraph J hereof; 12) For delivery in accordance with the provisions of any agreement between the Custodian (or a subcustodian employed pursuant to Section 2 hereof) and a broker-dealer registered under the Securities Exchange Act of 1934 and, if necessary, the Fund, relating to compliance with the rules of The Options Clearing Corporation or of any registered national securities exchange, or of any similar organization or organizations, regarding deposit or escrow or other arrangements in connection with options transactions by the Fund; 13) For delivery in accordance with the provisions of any agreement among the Fund, the Custodian (or a subcustodian employed pursuant to Section 2 hereof), and a futures commissions merchant, relating to compliance with the rules of the Commodity Futures Trading Commission and/or of any contract market or commodities exchange or similar organization, regarding futures margin account deposits or payments in connection with futures transactions by the Fund; 14) For any other proper corporate purpose, but only upon receipt of, in addition to proper instructions, a certified copy of a vote of the Board specifying the securities to be delivered, setting forth the purpose for which such delivery is to be made, declaring such purpose to be proper corporate purpose, and naming the person or persons to whom delivery of such securities shall be made. C. Registration of Securities Securities held by the Custodian (other than bearer securities) for the account of the Fund shall be registered in the name of the Fund or in the name of any nominee of the Fund or of any nominee of the Custodian, or in the name or nominee name of any agent appointed pursuant to Paragraph K hereof, or in the name or nominee name of any subcustodian employed pursuant to Section 2 hereof, or in the name or nominee name of The Depository Trust Company or Participants Trust Company or Approved Clearing Agency or Federal Book-Entry System or Approved Book-Entry System for Commercial Paper; provided, that securities are held in an account of the Custodian or of such agent or of such subcustodian containing only assets of the Fund or only assets held by the Custodian or such agent or such subcustodian as a custodian or subcustodian or in a fiduciary capacity for customers. All certificates for securities accepted by the Custodian or any such agent or subcustodian on behalf of the Fund shall be in "street" or other good delivery form or shall be returned to the selling broker or dealer who shall be advised of the reason thereof. D. Bank Accounts The Custodian shall open and maintain a separate bank account or accounts in the name of the Fund, subject only to draft or order by the Custodian acting in 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 Fund other than cash maintained by the Fund 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 Fund 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 the Custodian 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 in writing by two officers of the Fund. Such funds shall be deposited by the Custodian in its capacity as Custodian and shall be subject to withdrawal only by the Custodian in that capacity. E. Payment for Shares of the Fund The Custodian shall make appropriate arrangements with the Transfer Agent and the principal underwriter of the Fund to enable the Custodian to make certain it promptly receives the cash or other consideration due to the Fund for such new or treasury Shares as may be issued or sold from time to time by the Fund, in accordance with the governing documents and offering prospectus and statement of additional information of the Fund. The Custodian will provide prompt notification to the Fund of any receipt by it of payments for Shares of the Fund. F. Investment and Availability of Federal Funds Upon agreement between the Fund and the Custodian, the Custodian shall, upon the receipt of proper instructions, which may be continuing instructions when deemed appropriate by the parties, 1) invest in such securities and 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 Fund; and 2) make federal funds available to the Fund as of specified times agreed upon from time to time by the Fund and the Custodian in the amount of checks received in payment for Shares of the Fund which are deposited into the Fund's account. G. Collections The Custodian shall promptly collect all income and other payments with respect to registered securities held hereunder to which the Fund shall be entitled either by law or pursuant to custom in the securities business, and shall promptly collect all income and other payments with respect to bearer securities if, on the date of payment by the issuer, such securities are held by the Custodian or agent thereof and shall credit such income, as collected, to the Fund's custodian account. The Custodian shall do all things necessary and proper in connection with such prompt collections and, without limiting the generality of the foregoing, the Custodian shall 1) Present for payment all coupons and other income items requiring presentations; 2) Present for payment all securities which may mature or be called, redeemed, retired or otherwise become payable; 3) Endorse and deposit for collection, in the name of the Fund, checks, drafts or other negotiable instruments; 4) Credit income from securities maintained in a Securities System or in an Approved Book-Entry System for Commercial Paper at the time funds become available to the Custodian; in the case of securities maintained in The Depository Trust Company funds shall be deemed available to the Fund not later than the opening of business on the first business day after receipt of such funds by the Custodian. The Custodian shall notify the Fund as soon as reasonably practicable whenever income due on any security is not promptly collected. In any case in which the Custodian does not receive any due and unpaid income after it has made demand for the same, it shall immediately so notify the Fund in writing, enclosing copies of any demand letter, any written response thereto, and memoranda of all oral responses thereto and to telephonic demands, and await instructions from the Fund; the Custodian shall in no case have any liability for any nonpayment of such income provided the Custodian meets the standard of care set forth in Section 8 hereof. The Custodian shall not be obligated to take legal action for collection unless and until reasonably indemnified to its satisfaction. The Custodian shall also receive and collect all stock dividends, rights and other items of like nature, and deal with the same pursuant to proper instructions relative thereto. H. Payment of Fund Moneys Upon receipt of proper instructions, which may be continuing instructions when deemed appropriate by the parties, the Custodian shall pay out moneys of the Fund in the following cases only: 1) Upon the purchase of securities, participation interests, options, futures contracts, forward contracts and options on futures contracts purchased for the account of the Fund but only (a) against the receipt of (i) such securities registered as provided in Paragraph C hereof or in proper form for transfer or (ii) detailed instructions signed by an officer of the Fund regarding the participation interests to be purchased or (iii) written confirmation of the purchase by the Fund of the options, futures contracts, forward contracts or options on futures contracts by the Custodian (or by a subcustodian employed pursuant to Section 2 hereof or by a clearing corporation of a national securities exchange of which the Custodian is a member or by any bank, banking institution or trust company doing business in the United States or abroad which is qualified under the Investment Company Act of 1940 to act as a custodian and which has been designated by the Custodian as its agent for this purpose or by the agent specifically designated in such instructions as representing the purchasers of a new issue of privately placed securities); (b) in the case of a purchase effected through a Securities System, upon receipt of the securities by the Securities System in accordance with the conditions set forth in Paragraph L hereof; (c) in the case of a purchase of commercial paper effected through an Approved Book-Entry System for Commercial Paper, upon receipt of the paper by the Custodian or subcustodian in accordance with the conditions set forth in Paragraph M hereof; (d) in the case of repurchase agreements entered into between the Fund and another bank or a broker-dealer, against receipt by the Custodian of the securities underlying the repurchase agreement either in certificate form or through an entry crediting the Custodian's segregated, non-proprietary account at the Federal Reserve Bank of Boston with such securities along with written evidence of the agreement by the bank or broker-dealer to repurchase such securities from the Fund; or (e) with respect to securities purchased outside of the United States, in accordance with written procedures agreed to from time to time in writing by the parties hereto; 2) When required in connection with the conversion, exchange or surrender of securities owned by the Fund as set forth in Paragraph B hereof; 3) When required for the redemption or repurchase of Shares of the Fund in accordance with the provisions of Paragraph J hereof; 4) For the payment of any expense or liability incurred by the Fund, including but not limited to the following payments for the account of the Fund: advisory fees, distribution plan payments, interest, taxes, management compensation and expenses, accounting, transfer agent and legal fees, and other operating expenses of the Fund 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 or other distributions to holders of Shares declared or authorized by the Board; and 6) For any other proper corporate purpose, but only upon receipt of, in addition to proper instructions, a certified copy of a vote of the Board, specifying the amount of such payment, setting forth the purpose for which such payment is to be made, declaring such purpose to be a proper corporate purpose, and naming the person or persons to whom such payment is to be made. I. Liability for Payment in Advance of Receipt of Securities Purchased In any and every case where payment for purchase of securities for the account of the Fund is made by the Custodian in advance of receipt of the securities purchased in the absence of specific written instructions signed by two officers of the Fund to so pay in advance, the Custodian shall be absolutely liable to the Fund for such securities to the same extent as if the securities had been received by the Custodian; except that in the case of a repurchase agreement entered into by the Fund 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 (i) the securities in certificate form subject to such repurchase agreement or (ii) 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 (iii) the safekeeping receipt, provided that such securities have in fact been so transferred by book-entry and the written repurchase agreement is received by the Custodian in due course; and except that if the securities are to be purchased outside the United States, payment may be made in accordance with procedures agreed to in writing from time to time by the parties hereto. J. Payments for Repurchases or Redemptions of Shares of the Fund From such funds as may be available for the purpose, but subject to any applicable votes of the Board and the current redemption and repurchase procedures of the Fund, the Custodian shall, upon receipt of written instructions from the Fund or from the Fund's transfer agent or from the principal underwriter, make funds and/or portfolio securities available for payment to holders of Shares who have caused their Shares to be redeemed or repurchased by the Fund or for the Fund`s account by its transfer agent or principal underwriter. The Custodian may maintain a special checking account upon which special checks may be drawn by shareholders of the Fund holding Shares for which certificates have not been issued. Such checking account and such special checks shall be subject to such rules and regulations as the Custodian and the Fund may from time to time adopt. The Custodian or the Fund may suspend or terminate use of such checking account or such special checks (either generally or for one or more shareholders) at any time. The Custodian and the Fund shall notify the other immediately of any such suspension or termination. K. Appointment of Agents by the Custodian The Custodian may at any time or times in its discretion appoint (and may at any time remove) any other bank or trust company (provided such bank or trust company is itself qualified under the Investment Company Act of 1940 to act as a custodian or is itself an eligible foreign custodian within the meaning of Rule 17f-5 under said Act) as the agent of the Custodian to carry out such of the duties and functions of the Custodian described in this Section 3 as the Custodian may from time to time direct; provided, however, that the appointment of any such agent shall not relieve the Custodian of any of its responsibilities or liabilities hereunder, and as between the Fund and the Custodian the Custodian shall be fully responsible for the acts and omissions of any such agent. For the purposes of this Agreement, any property of the Fund held by any such agent shall be deemed to be held by the Custodian hereunder. L. Deposit of Fund Portfolio Securities in Securities Systems The Custodian may deposit and/or maintain securities owned by the Fund (1) in The Depository Trust Company; (2) in Participants Trust Company; (3) in any other Approved Clearing Agency; (4) in the Federal Book-Entry System; or (5) in an Approved Foreign Securities Depository in each case only in accordance with applicable Federal Reserve Board and Securities and Exchange Commission rules and regulations, and at all times subject to the following provisions: (a) The Custodian may (either directly or through one or more subcustodians employed pursuant to Section 2 keep securities of the Fund in a Securities System provided that such securities are maintained in a non-proprietary account ("Account") of the Custodian or such subcustodian in the Securities System which shall not include any assets of the Custodian or such subcustodian or any other person other than assets held by the Custodian or such subcustodian as a fiduciary, custodian, or otherwise for its customers. (b) The records of the Custodian with respect to securities of the Fund which are maintained in a Securities System shall identify by book-entry those securities belonging to the Fund, and the Custodian shall be fully and completely responsible for maintaining a recordkeeping system capable of accurately and currently stating the Fund's holdings maintained in each such Securities System. (c) The Custodian shall pay for securities purchased in book-entry form for the account of the Fund only upon (i) receipt of notice or advice from the Securities System that such securities have been transferred to the Account, and (ii) the making of any entry on the records of the Custodian to reflect such payment and transfer for the account of the Fund. The Custodian shall transfer securities sold for the account of the Fund only upon (i) receipt of notice or advice from the Securities System that payment for such securities has been transferred to the 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 Fund. Copies of all notices or advices from the Securities System of transfers of securities for the account of the Fund shall identify the Fund, be maintained for the Fund by the Custodian and be promptly provided to the Fund at its request. The Custodian shall promptly send to the Fund confirmation of each transfer to or from the account of the Fund in the form of a written advice or notice of each such transaction, and shall furnish to the Fund copies of daily transaction sheets reflecting each day's transactions in the Securities System for the account of the Fund on the next business day. (d) The Custodian shall promptly send to the Fund any report or other communication received or obtained by the Custodian relating to the Securities System's accounting system, system of internal accounting controls or procedures for safeguarding securities deposited in the Securities System; the Custodian shall promptly send to the Fund any report or other communication relating to the Custodian's internal accounting controls and procedures for safeguarding securities deposited in any Securities System; and the Custodian shall ensure that any agent appointed pursuant to Paragraph K hereof or any subcustodian employed pursuant to Section 2 hereof shall promptly send to the Fund and to the Custodian any report or other communication relating to such agent's or subcustodian's internal accounting controls and procedures for safeguarding securities deposited in any Securities System. The Custodian's books and records relating to the Fund's participation in each Securities System will at all times during regular business hours be open to the inspection of the Fund's authorized officers, employees or agents. (e) The Custodian shall not act under this Paragraph L in the absence of receipt of a certificate of an officer of the Fund that the Board has approved the use of a particular Securities System; the Custodian shall also obtain appropriate assurance from the officers of the Fund that the Board has annually reviewed the continued use by the Fund of each Securities System, and the Fund shall promptly notify the Custodian if the use of a Securities System is to be discontinued; at the request of the Fund, the Custodian will terminate the use of any such Securities System as promptly as practicable. (f) Anything to the contrary in this Agreement notwithstanding, the Custodian shall be liable to the Fund for any loss or damage to the Fund resulting from use of the Securities System by reason of any negligence, misfeasance or misconduct of the Custodian or any of its agents or subcustodians or of any of its or their employees or from any failure of the Custodian or any such agent or subcustodian to enforce effectively such rights as it may have against the Securities System or any other person; at the election of the Fund, 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 Fund has not been made whole for any such loss or damage. M. Deposit of Fund Commercial Paper in an Approved Book-Entry System for Commercial Paper Upon receipt of proper instructions with respect to each issue of direct issue commercial paper purchased by the Fund, the Custodian may deposit and/or maintain direct issue commercial paper owned by the Fund in any Approved Book-Entry System for Commercial Paper, in each case only in accordance with applicable Securities and Exchange Commission rules, regulations, and no-action correspondence, and at all times subject to the following provisions: (a) The Custodian may (either directly or through one or more subcustodians employed pursuant to Section 2) keep commercial paper of the Fund in an Approved Book-Entry System for Commercial Paper, provided that such paper is issued in book entry form by the Custodian or subcustodian on behalf of an issuer with which the Custodian or subcustodian has entered into a book-entry agreement and provided further that such paper is maintained in a non-proprietary account ("Account") of the Custodian or such subcustodian in an Approved Book-Entry System for Commercial Paper which shall not include any assets of the Custodian or such subcustodian or any other person other than assets held by the Custodian or such subcustodian as a fiduciary, custodian, or otherwise for its customers. (b) The records of the Custodian with respect to commercial paper of the Fund which is maintained in an Approved Book-Entry System for Commercial Paper shall identify by book-entry each specific issue of commercial paper purchased by the Fund which is included in the System and shall at all times during regular business hours be open for inspection by authorized officers, employees or agents of the Fund. The Custodian shall be fully and completely responsible for maintaining a recordkeeping system capable of accurately and currently stating the Fund's holdings of commercial paper maintained in each such System. (c) The Custodian shall pay for commercial paper purchased in book-entry form for the account of the Fund only upon contemporaneous (i) receipt of notice or advice from the issuer that such paper has been issued, sold and transferred to the Account, and (ii) the making of an entry on the records of the Custodian to reflect such purchase, payment and transfer for the account of the Fund. The Custodian shall transfer such commercial paper which is sold or cancel such commercial paper which is redeemed for the account of the Fund only upon contemporaneous (i) receipt of notice or advice that payment for such paper has been transferred to the Account, and (ii) the making of an entry on the records of the Custodian to reflect such transfer or redemption and payment for the account of the Fund. Copies of all notices, advices and confirmations of transfers of commercial paper for the account of the Fund shall identify the Fund, be maintained for the Fund by the Custodian and be promptly provided to the Fund at its request. The Custodian shall promptly send to the Fund confirmation of each transfer to or from the account of the Fund in the form of a written advice or notice of each such transaction, and shall furnish to the Fund copies of daily transaction sheets reflecting each day's transactions in the System for the account of the Fund on the next business day. (d) The Custodian shall promptly send to the Fund any report or other communication received or obtained by the Custodian relating to each System's accounting system, system of internal accounting controls or procedures for safeguarding commercial paper deposited in the System; the Custodian shall promptly send to the Fund any report or other communication relating to the Custodian's internal accounting controls and procedures for safeguarding commercial paper deposited in any Approved Book-Entry System for Commercial Paper; and the Custodian shall ensure that any agent appointed pursuant to Paragraph K hereof or any subcustodian employed pursuant to Section 2 hereof shall promptly send to the Fund and to the Custodian any report or other communication relating to such agent's or subcustodian's internal accounting controls and procedures for safeguarding securities deposited in any Approved Book-Entry System for Commercial Paper. (e) The Custodian shall not act under this Paragraph M in the absence of receipt of a certificate of an officer of the Fund that the Board has approved the use of a particular Approved Book-Entry System for Commercial Paper; the Custodian shall also obtain appropriate assurance from the officers of the Fund that the Board has annually reviewed the continued use by the Fund of each Approved Book-Entry System for Commercial Paper, and the Fund shall promptly notify the Custodian if the use of an Approved Book-Entry System for Commercial Paper is to be discontinued; at the request of the Fund, the Custodian will terminate the use of any such System as promptly as practicable. (f) The Custodian (or subcustodian, if the Approved Book-Entry System for Commercial Paper is maintained by the subcustodian) shall issue physical commercial paper or promissory notes whenever requested to do so by the Fund or in the event of an electronic system failure which impedes issuance, transfer or custody of direct issue commercial paper by book-entry. (g) Anything to the contrary in this Agreement notwithstanding, the Custodian shall be liable to the Fund for any loss or damage to the Fund resulting from use of any Approved Book-Entry System for Commercial Paper by reason of any negligence, misfeasance or misconduct of the Custodian or any of its agents or subcustodians or of any of its or their employees or from any failure of the Custodian or any such agent or subcustodian to enforce effectively such rights as it may have against the System, the issuer of the commercial paper or any other person; at the election of the Fund, it shall be entitled to be subrogated to the rights of the Custodian with respect to any claim against the System, the issuer of the commercial paper 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 Fund has not been made whole for any such loss or damage. N. Segregated Account The Custodian shall upon receipt of proper instructions establish and maintain a segregated account or accounts for and on behalf of the Fund, into which account or accounts may be transferred cash and/or securities, including securities maintained in an account by the Custodian pursuant to Paragraph L hereof, (i) in accordance with the provisions of any agreement among the Fund, the Custodian and any registered broker-dealer (or any futures commission merchant), relating to compliance with the rules of the Options Clearing Corporation and of any registered national securities exchange (or of the Commodity Futures Trading Commission or of any contract market or commodities exchange), or of any similar organization or organizations, regarding escrow or deposit or other arrangements in connection with transactions by the Fund, (ii) for purposes of segregating cash or U.S. Government securities in connection with options purchased, sold or written by the Fund or futures contracts or options thereon purchased or sold by the Fund, (iii) for the purposes of compliance by the Fund 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 purposes, but only, in the case of clause (iv), upon receipt of, in addition to proper instructions, a certificate signed by two officers of the Fund, setting forth the purpose such segregated account and declaring such purpose to be a proper purpose. O. 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 securities of the Fund held by it and in connection with transfers of securities. P. Proxies The Custodian shall, with respect to the securities held by it hereunder, cause to be promptly delivered to the Fund all forms of proxies and all notices of meetings and any other notices or announcements or other written information affecting or relating to the securities, and upon receipt of proper instructions shall execute and deliver or cause its nominee to execute and deliver such proxies or other authorizations as may be required. Neither the Custodian nor its nominee shall vote upon any of the securities or execute any proxy to vote thereon or give any consent or take any other action with respect thereto (except as otherwise herein provided) unless ordered to do so by proper instructions. Q. Communications Relating to Fund Portfolio Securities The Custodian shall deliver promptly to the Fund all written information (including, without limitation, pendency of call and maturities of securities and participation interests and expirations of rights in connection therewith and notices of exercise of call and put options written by the Fund and the maturity of futures contracts purchased or sold by the Fund) received by the Custodian from issuers and other persons relating to the securities and participation interests being held for the Fund. With respect to tender or exchange offers, the Custodian shall deliver promptly to the Fund all written information received by the Custodian from issuers and other persons relating to the securities and participation interests whose tender or exchange is sought and from the party (or his agents) making the tender or exchange offer. R. Exercise of Rights; Tender Offers In the case of tender offers, similar offers to purchase or exercise rights (including, without limitation, pendency of calls and maturities of securities and participation interests and expirations of rights in connection therewith and notices of exercise of call and put options and the maturity of futures contracts) affecting or relating to securities and participation interests held by the Custodian under this Agreement, the Custodian shall have responsibility for promptly notifying the Fund of all such offers in accordance with the standard of reasonable care set forth in Section 8 hereof. For all such offers for which the Custodian is responsible as provided in this Paragraph R, the Fund shall have responsibility for providing the Custodian with all necessary instructions in timely fashion. Upon receipt of proper instructions, the Custodian shall timely deliver to the issuer or trustee thereof, or to the agent of either, warrants, puts, calls, rights or similar securities for the purpose of being exercised or sold upon proper receipt therefor and upon receipt of assurances satisfactory to the Custodian that the new securities and cash, if any, acquired by such action are to be delivered to the Custodian or any subcustodian employed pursuant to Section 2 hereof. Upon receipt of proper instructions, the Custodian shall timely deposit securities upon invitations for tenders of securities upon proper receipt therefor and upon receipt of assurances satisfactory to the Custodian that the consideration to be paid or delivered or the tendered securities are to be returned to the Custodian or subcustodian employed pursuant to Section 2 hereof. Notwithstanding any provision of this Agreement to the contrary, the Custodian shall take all necessary action, unless otherwise directed to the contrary by proper instructions, to comply with the terms of all mandatory or compulsory exchanges, calls, tenders, redemptions, or similar rights of security ownership, and shall thereafter promptly notify the Fund in writing of such action. S. Depository Receipts The Custodian shall, upon receipt of proper instructions, surrender or cause to be surrendered foreign securities to the depository used by an issuer of American Depository Receipts or International Depository Receipts (hereinafter collectively referred to as "ADRs") for such securities, against a written receipt therefor adequately describing such securities and written evidence satisfactory to the Custodian that the depository has acknowledged receipt of instructions to issue with respect to such securities ADRs in the name of a nominee of the Custodian or in the name or nominee name of any subcustodian employed pursuant to Section 2 hereof, for delivery to the Custodian or such subcustodian at such place as the Custodian or such subcustodian may from time to time designate. The Custodian shall, upon receipt of proper instructions, surrender ADRs to the issuer thereof against a written receipt therefor adequately describing the ADRs surrendered and written evidence satisfactory to the Custodian that the issuer of the ADRs has acknowledged receipt of instructions to cause its depository to deliver the securities underlying such ADRs to the Custodian or to a subcustodian employed pursuant to Section 2 hereof. T. Interest Bearing Call or Time Deposits The Custodian shall, upon receipt of proper instructions, place interest bearing fixed term and call deposits with the banking department of such banking institution (other than the Custodian) and in such amounts as the Fund may designate. Deposits may be denominated in U.S. Dollars or other currencies. The Custodian shall include in its records with respect to the assets of the Fund appropriate notation as to the amount and currency of each such deposit, the accepting banking institution and other appropriate details and shall retain such forms of advice or receipt evidencing the deposit, if any, as may be forwarded to the Custodian by the banking institution. Such deposits shall be deemed portfolio securities of the applicable Fund for the purposes of this Agreement, and the Custodian shall be responsible for the collection of income from such accounts and the transmission of cash to and from such accounts. U. Options, Futures Contracts and Foreign Currency Transactions 1. Options. The Custodians shall, upon receipt of proper instructions and in accordance with the provisions of any agreement between the Custodian, any registered broker-dealer and, if necessary, the Fund, relating to compliance with the rules of the Options Clearing Corporation or of any registered national securities exchange or similar organization or organizations, receive and retain confirmations or other documents, if any, evidencing the purchase or writing of an option on a security or securities index or other financial instrument or index by the Fund; deposit and maintain in a segregated account for each Fund separately, either physically or by book-entry in a Securities System, securities subject to a covered call option written by the Fund; and release and/or transfer such securities or other assets only in accordance with a notice or other communication evidencing the expiration, termination or exercise of such covered option furnished by the Options Clearing Corporation, the securities or options exchange on which such covered option is traded or such other organization as may be responsible for handling such options transactions. The Custodian and the broker-dealer shall be responsible for the sufficiency of assets held in each Fund's segregated account in compliance with applicable margin maintenance requirements. 2. Futures Contracts The Custodian shall, upon receipt of proper instructions, receive and retain confirmations and other documents, if any, evidencing the purchase or sale of a futures contract or an option on a futures contract by the Fund; deposit and maintain in a segregated account, for the benefit of any futures commission merchant, assets designated by the Fund as initial, maintenance or variation "margin" deposits (including mark-to-market payments) intended to secure the Fund's performance of its obligations under any futures contracts purchased or sold or any options on futures contracts written by Fund, in accordance with the provisions of any agreement or agreements among the Fund, the Custodian and such futures commission merchant, designed to comply with the rules of the Commodity Futures Trading Commission and/or of any contract market or commodities exchange or similar organization regarding such margin deposits or payments; and release and/or transfer assets in such margin accounts only in accordance with any such agreements or rules. The Custodian and the futures commission merchant shall be responsible for the sufficiency of assets held in the segregated account in compliance with the applicable margin maintenance and mark-to-market payment requirements. 3. Foreign Exchange Transactions The Custodian shall, pursuant to proper instructions, enter into or cause a subcustodian to enter into foreign exchange contracts or options to purchase and sell foreign currencies for spot and future delivery on behalf and for the account of the Fund. Such transactions may be undertaken by the Custodian or subcustodian with such banking or financial institutions or other currency brokers, as set forth in proper instructions. Foreign exchange contracts and options shall be deemed to be portfolio securities of the Fund; and accordingly, the responsibility of the Custodian therefor shall be the same as and no greater than the Custodian's responsibility in respect of other portfolio securities of the Fund. The Custodian shall be responsible for the transmittal to and receipt of cash from the currency broker or banking or financial institution with which the contract or option is made, the maintenance of proper records with respect to the transaction and the maintenance of any segregated account required in connection with the transaction. The Custodian shall have no duty with respect to the selection of the currency brokers or banking or financial institutions with which the Fund deals or for their failure to comply with the terms of any contract or option. Without limiting the foregoing, it is agreed that upon receipt of proper instructions and insofar as funds are made available to the Custodian for the purpose, the Custodian may (if determined necessary by the Custodian to consummate a particular transaction on behalf and for the account of the Fund) make free outgoing payments of cash in the form of U.S. dollars or foreign currency before receiving confirmation of a foreign exchange contract or confirmation that the countervalue currency completing the foreign exchange contact has been delivered or received. The Custodian shall not be responsible for any costs and interest charges which may be incurred by the Fund or the Custodian as a result of the failure or delay of third parties to deliver foreign exchange; provided that the Custodian shall nevertheless be held to the standard of care set forth in, and shall be liable to the Fund in accordance with, the provisions of Section 8. V. Actions Permitted Without Express Authority The Custodian may in its discretion, without express authority from the Fund: 1) make payments to itself or others for minor expenses of handling securities or other similar items relating to its duties under this Agreement, provided, that all such payments shall be accounted for by the Custodian to the Treasurer of the Fund; 2) surrender securities in temporary form for securities in definitive form; 3) endorse for collection, in the name of the Fund, checks, drafts and other negotiable instruments; and 4) in general, attend to all nondiscretionary details in connection with the sale, exchange, substitution, purchase, transfer and other dealings with the securities and property of the Fund except as otherwise directed by the Fund. 4. Duties of Bank with Respect to Books of Account and Calculations of Net Asset Value The Bank shall as Agent (or as Custodian, as the case may be) keep such books of account (including records showing the adjusted tax costs of the Fund's portfolio securities) and render as at the close of business on each day a detailed statement of the amounts received or paid out and of securities received or delivered for the account of the Fund during said day and such other statements, including a daily trial balance and inventory of the Fund's portfolio securities; and shall furnish such other financial information and data as from time to time requested by the Treasurer or any executive officer of the Fund; and shall compute and determine, as of the close of business of the New York Stock Exchange, or at such other time or times as the Board may determine, the net asset value of a Share in the Fund, such computation and determination to be made in accordance with the governing documents of the Fund and the votes and instructions of the Board at the time in force and applicable, and promptly notify the Fund and its investment adviser and such other persons as the Fund may request of the result of such computation and determination. In computing the net asset value the Custodian may rely upon security quotations received by telephone or otherwise from sources or pricing services designated by the Fund by proper instructions, and may further rely upon information furnished to it by any authorized officer of the Fund relative (a) to liabilities of the Fund not appearing on its books of account, (b) to the existence, status and proper treatment of any reserve or reserves, (c) to any procedures established by the Board regarding the valuation of portfolio securities, and (d) to the value to be assigned to any bond, note, debenture, Treasury bill, repurchase agreement, subscription right, security, participation interests or other asset or property for which market quotations are not readily available. 5. Records and Miscellaneous Duties The Bank shall create, maintain and preserve all records relating to its activities and obligations under this Agreement in such manner as will meet the obligations of the Fund 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 Fund. All books of account and records maintained by the Bank in connection with the performance of its duties under this Agreement shall be the property of the Fund, shall at all times during the regular business hours of the Bank be open for inspection by authorized officers, employees or agents of the Fund, and in the event of termination of this Agreement shall be delivered to the Fund or to such other person or persons as shall be designated by the Fund. Disposition of any account or record after any required period of preservation shall be only in accordance with specific instructions received from the Fund. The Bank shall assist generally in the preparation of reports to shareholders, to the Securities and Exchange Commission, including Forms N-SAR and N-1Q, to state "blue sky" authorities and to others, audits of accounts, and other ministerial matters of like nature; and, upon request, shall furnish the Fund's auditors with an attested inventory of securities held with appropriate information as to securities in transit or in the process of purchase or sale and with such other information as said auditors may from time to time request. The Custodian shall also maintain records of all receipts, deliveries and locations of such securities, together with a current inventory thereof, and shall conduct periodic verifications (including sampling counts at the Custodian) of certificates representing bonds and other securities for which it is responsible under this Agreement in such manner as the Custodian shall determine from time to time to be advisable in order to verify the accuracy of such inventory. The Bank shall not disclose or use any books or records it has prepared or maintained by reason of this Agreement in any manner except as expressly authorized herein or directed by the Fund, and the Bank shall keep confidential any information obtained by reason of this Agreement. 6. Opinion of Fund's Independent Public Accountants The Custodian shall take all reasonable action, as the Fund may from time to time request, to enable the Fund to obtain from year to year favorable opinions from the Fund's independent public accountants with respect to its activities hereunder in connection with the preparation of the Fund's registration statement and Form N-SAR or other periodic reports to the Securities and Exchange Commission and with respect to any other requirements of such Commission. 7. Compensation and Expenses of Bank The Bank shall be entitled to reasonable compensation for its services as Custodian and Agent, as agreed upon from time to time between the Fund and the Bank. The Bank shall be entitled to receive from the Fund on demand reimbursement for its cash disbursements, expenses and charges, including counsel fees, in connection with its duties as Custodian and Agent hereunder, but excluding salaries and usual overhead expenses. 8. Responsibility of Bank So long as and to the extent that it is in the exercise of reasonable care, the Bank as Custodian and Agent 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 Bank as Custodian and Agent shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Fund) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. The Bank as Custodian and Agent shall be held to the exercise of reasonable care in carrying out the provisions of this Agreement but shall be liable only for its own negligent or bad faith acts or failures to act. Notwithstanding the foregoing, nothing contained in this paragraph is intended to nor shall it be construed to modify the standards of care and responsibility set forth in Section 2 hereof with respect to subcustodians and in subparagraph f of Paragraph L of Section 3 hereof with respect to Securities Systems and in subparagraph g of Paragraph M of Section 3 hereof with respect to an Approved Book-Entry System for Commercial Paper. The Custodian shall be liable for the acts or omissions of a foreign banking institution to the same extent as set forth with respect to subcustodians generally in Section 2 hereof, provided that, regardless of whether assets are maintained in the custody of a foreign banking institution, a foreign securities depository or a branch of a U.S. bank, the Custodian shall not be liable for any loss, damage, cost, expense, liability or claim resulting from, or caused by, the direction of or authorization by the Fund to maintain custody of any securities or cash of the Fund in a foreign county including, but not limited to, losses resulting from nationalization, expropriation, currency restrictions, acts of war, civil war or terrorism, insurrection, revolution, military or usurped powers, nuclear fission, fusion or radiation, earthquake, storm or other disturbance of nature or acts of God. If the Fund requires the Bank in any capacity to take any action with respect to securities, which action involves the payment of money or which action may, in the opinion of the Bank, result in the Bank or its nominee assigned to the Fund being liable for the payment of money or incurring liability of some other form, the Fund, as a prerequisite to requiring the Custodian to take such action, shall provide indemnity to the Custodian in an amount and form satisfactory to it. 9. Persons Having Access to Assets of the Fund (i) No trustee, director, general partner, officer, employee or agent of the Fund shall have physical access to the assets of the Fund held by the Custodian or be authorized or permitted to withdraw any investments of the Fund, nor shall the Custodian deliver any assets of the Fund to any such person. No officer or director, employee or agent of the Custodian who holds any similar position with the Fund or the investment adviser of the Fund shall have access to the assets of the Fund. (ii) Access to assets of the Fund held hereunder shall only be available to duly authorized officers, employees, representatives or agents of the Custodian or other persons or entities for whose actions the Custodian shall be responsible to the extent permitted hereunder, or to the Fund's independent public accountants in connection with their auditing duties performed on behalf of the Fund. (iii) Nothing in this Section 9 shall prohibit any officer, employee or agent of the Fund or of the investment adviser of the Fund from giving instructions to the Custodian or executing a certificate so long as it does not result in delivery of or access to assets of the Fund prohibited by paragraph (i) of this Section 9. 10. Effective Period, Termination and Amendment; Successor Custodian This Agreement 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 sixty (60) days after the date of such delivery or mailing; provided, that the Fund may at any time by action of its Board, (i) substitute another bank or trust company for the Custodian by giving notice as described above to the Custodian, or (ii) immediately terminate this Agreement in the event of the appointment of a conservator or receiver for the Custodian by the Federal Deposit Insurance Corporation or by the Banking Commissioner of The Commonwealth of Massachusetts 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 Agreement, the Fund 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. Unless the holders of a majority of the outstanding Shares of the Fund vote to have the securities, funds and other properties held hereunder delivered and paid over to some other bank or trust company, specified in the vote, having not less than $2,000,000 of aggregate capital, surplus and undivided profits, as shown by its last published report, and meeting such other qualifications for custodians set forth in the Investment Company Act of 1940, the Board shall, forthwith, upon giving or receiving notice of termination of this Agreement, appoint as successor custodian, a bank or trust company having such qualifications. The Bank, as Custodian, Agent or otherwise, shall, upon termination of the Agreement, deliver to such successor custodian, all securities then held hereunder and all funds or other properties of the Fund deposited with or held by the Bank hereunder and all books of account and records kept by the Bank pursuant to this Agreement, and all documents held by the Bank relative thereto. In the event that no such vote has been adopted by the shareholders and that no written order designating a successor custodian shall have been delivered to the Bank on or before the date when such termination shall become effective, then the Bank shall not deliver the securities, funds and other properties of the Fund to the Fund but shall have the right to deliver to a bank or trust company doing business in Boston, Massachusetts of its own selection, having an aggregate capital, surplus and undivided profits, as shown by its last published report, of not less than $2,000,000, all funds, securities and properties of the Fund held by or deposited with the Bank, and all books of account and records kept by the Bank pursuant to this Agreement, and all documents held by the Bank relative thereto. Thereafter such bank or trust company shall be the successor of the Custodian under this Agreement. 11. Interpretive and Additional Provisions In connection with the operation of this Agreement, the Custodian and the Fund may from time to time agree on such provisions interpretive of or in addition to the provisions of this Agreement as may in their joint opinion be consistent with the general tenor of this Agreement. 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 governing instruments of the Fund. No interpretive or additional provisions made as provided in the preceding sentence shall be deemed to be an amendment of this Agreement. 12. Notices Notices and other writings delivered or mailed postage prepaid to the Fund addressed to 24 Federal Street, Boston, Massachusetts 02110, or to such other address as the Fund may have designated to the Bank, in writing, or to Investors Bank & Trust Company, 24 Federal Street, Boston, Massachusetts 02110, shall be deemed to have been properly delivered or given hereunder to the respective addressees. 13. Massachusetts Law to Apply This Agreement shall be construed and the provisions thereof interpreted under and in accordance with the laws of The Commonwealth of Massachusetts. If the Fund is a Massachusetts business trust, the Custodian expressly acknowledges the provision in the Fund's declaration of Trust limiting the personal liability of the trustees and shareholders of the Fund; and the Custodian agrees that it shall have recourse only to the assets of the Fund for the payment of claims or obligations as between the Custodian and the Fund arising out of this Agreement, and the Custodian shall not seek satisfaction of any such claim or obligation from the trustees or shareholders of the Fund. 14. Adoption of the Agreement by the Fund The Fund represents that its Board has approved this Agreement and has duly authorized the Fund to adopt this Agreement, such adoption to be evidenced by a letter agreement between the Fund and the Bank reflecting such adoption, which letter agreement shall be dated and signed by a duly authorized officer of the Fund and duly authorized officer of the Bank. This Agreement shall be deemed to be duly executed and delivered by each of the parties in its name and behalf by its duly authorized officer as of the date of such letter agreement, and this Agreement shall be deemed to supersede and terminate, as of the date of such letter agreement, all prior agreements between the Fund and the Bank relating to the custody of the Fund's assets. * * * * * EX-99.8(B) 5 CUSTODIAN AGREEMENT EXHIBIT 99.8(b) AMENDMENT TO MASTER CUSTODIAN AGREEMENT BETWEEN EATON VANCE GROUP OF FUNDS AND INVESTORS BANK & TRUST COMPANY This Amendment, dated as of October 23, 1995, is made to the MASTER CUSTODIAN AGREEMENT (the "Agreement") between each investment company for which Eaton Vance Management acts as investment adviser or administrator which has adopted the Agreement (the "Funds") and Investors Bank & Trust Company (the "Custodian") pursuant to Section 10 of the Agreement. The Funds and the Custodian agree that Section 10 of the Agreement shall, as of October 23, 1995, be amended to read as follows: Unless otherwise defined herein, terms which are defined in the Agreement and used herein are so used as so defined. 10. Effective Period, Termination and Amendment; Successor Custodian This Agreement shall become effective as of its execution, shall continue in full force and effect until terminated by either party after August 31, 2000 by an instrument in writing delivered or mailed, postage prepaid to the other party, such termination to take effect not sooner than sixty (60) days after the date of such delivery or mailing; provided, that the Fund may at any time by action of its Board, (i) substitute another bank or trust company for the Custodian by giving notice as described above to the Custodian in the event the Custodian assigns this Agreement to another party without consent of the noninterested Trustees of the Funds, or (ii) immediately terminate this Agreement in the event of the appointment of a conservator or receiver for the Custodian by the Federal Deposit Insurance Corporation or by the Banking Commissioner of The Commonwealth of Massachusetts 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 Agreement, the Fund 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). This Agreement may be amended at any time by the written agreement of the parties hereto. If a majority of the non-interested trustees of any of the Funds determines that the performance of the Custodian has been unsatisfactory or adverse to the interests of shareholders of any Fund or Funds or that the terms of the Agreement are no longer consistent with publicly available industry standards, then the Fund or Funds shall give written notice to the Custodian of such determination and the Custodian shall have 60 days to (1) correct such performance to the satisfaction of the non-interested trustees or (2) renegotiate terms which are satisfactory to the non-interested trustees of the Funds. If the conditions of the preceding sentence are not met then the Fund or Funds may terminate this Agreement on sixty (60) days written notice. The Board of the Fund shall, forthwith, upon giving or receiving notice of termination of this Agreement, appoint as successor custodian, a bank or trust company having the qualifications required by the Investment Company Act of 1940 and the Rules thereunder. The Bank, as Custodian, Agent or otherwise, shall, upon termination of the Agreement, deliver to such successor custodian, all securities then held hereunder and all funds or other properties of the Fund deposited with or held by the Bank hereunder and all books of account and records kept by the Bank pursuant to this Agreement, and all documents held by the Bank relative thereto. In the event that no written order designating a successor custodian shall have been delivered to the Bank on or before the date when such termination shall become effective, then the Bank shall not deliver the securities, funds and other properties of the Fund to the Fund but shall have the right to deliver to a bank or trust company doing business in Boston, Massachusetts of its own selection meeting the above required qualifications, all funds, securities and properties of the Fund held by or deposited with the Bank, and all books of account and records kept by the Bank pursuant to this Agreement, and all documents held by the Bank relative thereto. Thereafter such bank or trust company shall be the successor of the Custodian under this Agreement. Except as expressly provided herein, the Agreement shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers, as of the day and year first above written. CAPITAL EXCHANGE FUND, INC. EATON VANCE MUNICIPALS TRUST II DEPOSITORS FUND OF BOSTON, INC. EATON VANCE MUTUAL FUNDS TRUST DIVERSIFICATION FUND, INC. EATON VANCE PRIME RATE RESERVES EATON VANCE EQUITY-INCOME TRUST EATON VANCE SPECIAL INVESTMENT TRUST EATON VANCE GROWTH TRUST EV CLASSIC SENIOR FLOATING-RATE FUND EATON VANCE INVESTMENT FUND, INC. FIDUCIARY EXCHANGE FUND, INC. EATON VANCE INVESTMENT TRUST SECOND FIDUCIARY EXCHANGE FUND, INC. EATON VANCE MUNICIPAL BOND FUND L.P. THE EXCHANGE FUND OF BOSTON, INC. EATON VANCE MUNICIPALS TRUST VANCE, SANDERS EXCHANGE FUND By: /s/ James L. O'Connor --------------------------- Treasurer INVESTORS BANK & TRUST COMPANY By: /s/ Michael Rogers --------------------------- EX-27 6 FDS
6 12-MOS OCT-31-1995 OCT-31-1995 95,499 115,474 155 122 0 115,751 0 0 1,108 1,108 0 0 0 0 0 0 28,467 0 95,499 114,643 2,009 102 0 768 1,343 6,830 21,643 29,817 0 0 0 0 0 0 0 0 0 0 0 0 634 0 768 114,643 0 0 0 0 0 0 0 0 0 0
-----END PRIVACY-ENHANCED MESSAGE-----