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EXHIBIT NO. 99.8
CUSTODY AGREEMENT WITH U.S. BANK
FORM OF CUSTODY AND SUBCUSTODIAN AGREEMENTS WITH CHASE MANHATTAN BANK
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MODEL SUBCUSTODIAN AGREEMENT
Dear Sirs:
This will confirm to you that The Chase Manhattan Bank, N.A. ("Chase") has been
appointed to act as Trustee, Custodian or Subcustodian of securities and monies
on behalf of certain of its customers including, without limitation, investment
companies subject to the Investment Company Act of 1940, as amended and
qualified employee benefit plans subject to the Employee Retirement Income
Security Act of 1974, as amended.
Chase has been authorized to utilize the services of other banks, financial
institutions and securities depositories located in countries or jurisdictions
in which the principal trading markets for any shares, bonds, debentures or any
other securities (hereinafter collectively called Securities") of its customers
are located or in which any Securities of its customers are to be presented for
payment or acquired, and for the purpose of holding cash and cash equivalents.
Chase wishes to utilize the services of your bank "Bank") as Chase's agent
within for such purposes and hereby establishes with Bank a Special Custody
Account which Bank understands and agrees will be used exclusively for
Securities and other assets of Chase's customers ("Account") and not for Chase's
own interest.
The services Bank will provide to Chase and the manner in which such services
will be performed will be as set forth below in this letter, which may be
mutually amended in writing from time to time by Bank and Chase. To the extent
inconsistent with this letter, as so amended, Bank's rules and conditions
regarding accounts generally or custody accounts specifically shall not apply.
1. The account shall be used to hold, acquire, transfer or otherwise care
for, on behalf of Chase as Trustee, Custodian or Subcustodian as
aforesaid and the customers of Chase and not for Chase's own interest,
Securities and such cash and cash equivalents as are transferred to
Bank or as are received in payment of any transfer of or as payment on,
or interest on or dividend from, any such Securities (hereinafter
collectively called Cash"), and beneficial ownership of the Securities
and Cash in the Account shall be freely transferable without payment of
money or value other than for safe custody and administration. All
transactions involving the Securities and Cash in the Account shall be
executed solely in accordance with Chase's Instructions as that term is
defined in Section 10, except solely in accordance with Chase's
Instructions as that term is defined in Section 10, except that until
Bank receives Instructions from Chase to the contrary, Bank will:
a) present for payment all Securities held in the Account which
are called, redeemed or retired or otherwise become payable
and all coupons and other income items which call for payment
upon presentation and hold the cash received in the Account
pursuant to this Agreement:
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b) in respect of Securities held in the Account, execute in the
name of Chase such ownership and other certificates as may be
required to obtain payments in respect thereof; and
c) exchange interim receipts or temporary Securities held in the
Account for definitive Securities.
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d) where any Securities held in any securities depository are
called for a partial redemption by the issuer of such
Securities, allot in Bank's sole discretion the called portion
to the respective holders in any manner deemed to be fair and
equitable in Bank's judgment.
Whenever pursuant to this Agreement or for any purpose relating hereto
anything whatsoever may or is required to be done or given by Chase, it
shall be done or given, as the case may be, by and for Chase by such
officer or officers of Chase or other person or persons as the
governing body of Chase shall specify from time to time. Any
specification by the governing body shall specify from time to time.
Any such specification by the governing body shall by resolution of
which a copy certified by the President, or a Vice President, and the
seal attested by the Secretary or any Assistant Secretary of Chase
shall be furnished to Bank. Bank shall be conclusively entitled to rely
upon the identification of such persons as the holders of those offices
so specified in any such resolution, absent Instructions to the
contrary. Chase shall furnish to Bank specimens of the signatures of
all such officers and persons so specified in any such resolution
received by Bank in force at he time of the receipt by Bank of such
Instructions, and shall not be charged with any responsibility
respecting the application of monies out in accordance therewith.
Bank shall not be liable for any act or omission in respect of any
Instructions so given except in the case of wilful default, negligence,
fraud, bad faith, wilful misconduct, or reckless disregard of duties on
the part of the Bank. Bank in executing all Instructions will take
relevant action in accordance with accepted industry practice.
2. The Account shall not be subject to any right, charge, security
interest, lien or claim or any kind (hereinafter collectively called
"Claims") in favor of Bank or any other institution with whom assets in
the Account may be maintained as provided in this Agreement or any
creditor of Bank or of such other institution, including a receiver or
trustee in bankruptcy, except to the extent of Bank's or such other
institution's right to compensation or reimbursement with regard to the
Account's administration in accordance with the terms of this
Agreement. Bank shall provide Chase with prompt notice of any attempt
by any party to assert any Claim against the Account and shall take all
actions to protect the Account from such Claim until Chase has had a
reasonable time to respond to such notice.
3. The ownership of the assets of the Account, whether Securities, Cash or
both, and whether any such assets are held by Bank or in a securities
depository or clearing agency as hereinafter authorized, shall be
clearly recorded on Bank's own interest, and, to the extent securities
are physically held in the Account, such Securities shall also be
physically segregated from the general assets of Bank, the assets of
Chase in its individual capacity and the assets of Bank's other
customers.
In order to facilitate the settlement of transactions, Bank may, with
the approval of Chase, which shall not be unreasonably withheld,
maintain all or any part of the Securities in the Account with a
securities depository or clearing agency which is incorporated or
organized under the law of a
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country other than he United States of America and is supervised or
regulated by a government agency or regulatory authority in the foreign
jurisdiction having authority over such depositories or agencies, and
which operates (I) the central system for handling of securities or
equivalent book entries, provided, however, that while so maintained
such Securities shall be subject only to the directions of Bank, and
that Bank's duties, obligations and responsibilities with regard to
such Securities shall be the same as if such Securities were held by
Bank.
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Securities which are eligible for deposit in a depository may be
maintained with the depository in an account for Bank's customers.
Securities which are not deposited in a depository will be held in the
following forms:
a) Securities issued only in bearer form shall be held in bearer
form.
b) Securities issued only in registered form shall be registered
in the name of Bank, or in the name of Bank's nominee, unless
alternate instructions are furnished by Chase.
c) Securities issued in both bearer and registered for n which
are freely interchangeable without penalty, shall be
registered in the name of Bank, or in the name of Bank's
nominee, if received by Bank in registered form, or shall be
held in bearer form if received by Bank in bearer form, unless
alternate instructions are furnished by Chase.
4. Subject to the provisions of Section 8 hereof:
a) Bank shall be responsible for complying with all provisions of
the law of ______________, or any other law, applicable to
Bank in connection with its duties hereunder including (but
not limited to) the payment of all transfer or similar taxes
and compliance with any currency restrictions and securities
laws;
b) All collections of funds or other property paid or distributed
in respect of Securities held in the Account shall be made at
the risk of the Account; and
c) Bank shall have no liability for any loss occasioned by delay
in the actual receipt of notice by its Custody Division of any
payment, redemption or other transaction regarding Securities
held in the Account in respect of which Bank has agreed to
take action as provided in Section I hereof.
5. Subject to applicable law, Bank will permit independent public
accountants for Chase and customers of Chase reasonable access to its
books and records as they pertain to the Account in connection with
such accountants' examination of the books and records of Account.
6. Bank will either periodically or upon Chase's request supply Chase with
such statements regarding the Account as Chase may request and Bank is
able to supply, including an identification of, and the location of,
any person having physical possession of the Securities in the Account,
and the name and address of the governmental agency or other regulatory
authority that supervises or regulates Bank. In addition, Bank will
furnish Chase periodically with advises and/or notifications of any
transfers of such securities.
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7. Bank agrees that in the event of any loss of Securities or Cash in the
Account, Bank will use its best efforts to ascertain the circumstances
relating to such loss and promptly report the same to Chase.
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8. Bank will indemnify Chase for any loss or liability to Chase's
customers and other loss or liability incurred by Chase, individually
or as Trustee, Custodian or Subcustodian as aforesaid, with respect to
the Account (including, but not limited to, Chase's legal fees and
expenses and any other legal fees and expenses for which Chase is
liable, and any loss or liability in connection with a claim settled by
agreement between Chase and a customer, which agreement is accepted by
Bank) to the extent that such loss or liability arises from negligence,
fraud, bad faith, wilful misconduct or reckless disregard of duties on
the part of Bank. Chase will indemnify Bank for any loss or liability
Bank incurs from any action taken or omitted to be taken by Bank with
respect to the Account, except such losses or liability as results from
the negligence, fraud, bad faith, wilful misconduct or reckless
disregard of duties on he part of Bank.
9. Bank acknowledges that under U.S. regulatory requirements Bank must be
a regulated entity and must have a certain minimum shareholders' equity
in order to be used by Chase to provide the services contemplated in
this Agreement. Bank represents and warrants that it (I) is a banking
institution organized under the law of ____________, (ii) is regulated
as a banking institution by _____________, which is the agency of the
Government of _______________ responsible for the regulation of Banks
and (iii) on and after the debate hereof or such later date a shall be
specified in Instructions, has shareholders' equity in excess of two
hundred thirty million U.S. dollars (U.S.$230,000,000), or such lesser
amount as shall be specified in any order of the United States
Securities and Exchange commission applicable to Bank, or the
equivalent thereof in _____________ currency determined at current
rates. For purposes of this Section, shareholders' equity of the Bank
shall mean such shareholders' equity as would be shown on any financial
statement of the Bank if such financial statement were prepared
according to United States generally accepted accounting principles.
Bank will immediately notify Chase in writing or by other authorized
means of any development or occurrence (and the circumstances related
thereto) which could render Bank unable to make the foregoing
representation at any date. Upon such notification Chase may terminate
this Agreement immediately without prior notice to Bank.
10. As used in this Agreement, the term instructions" means instructions of
Chase received by Bank via telephone, or in writing, including but not
limited to telex, TWX, facsimile transmission, bank wire or other
teleprocess or electronic instruction system which Bank believes in
good faith to have been given by Chase or which are transmitted with
proper testing or authentication pursuant to terms and conditions which
Chase may specify. Unless otherwise expressly provided, all
Instructions shall continue in full force and effect until canceled or
superseded. Bank shall safeguard any testkeys, identification codes or
other security devices which Chase shall make available to it. Either
party may electronically record any Instructions given by telephone,
and any other telephone discussions, with respect to the Account.
Instructions by telephone shall be confirmed by telex or such other
communication as maybe mutually acceptable.
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11. Chase agrees to pay Bank such compensation, including reimbursement of
reasonable expenses (if not charged to the Account), as may be mutually
agreed upon from time to time between Bank and Chase.
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12. Either Bank of Chase may terminate this Agreement by 60 days written
notice to the other party, provided that any such notice, whether given
by Chase or by Bank shall be followed within 60 days by Instructions
specifying the names of the persons to whom Bank shall deliver the
Securities in the Account and to whom the cash in the Account shall be
paid. If within 60 days following the giving of such notice of
termination Bank does not receive such Instructions, Bank shall
continue to hold such Securities and cash subject to this Agreement
until such Instructions are given. The obligations of the parties under
Section 4(a), 8 and I 1 of this Agreement shall survive the termination
of this Agreement.
13. Notices with respect to termination, specification of officers and
other persons and terms and conditions for Instructions shall be in
writing, and delivered by mail, postage prepaid, to the following
addresses (or to such other address as either party hereto may from
time to time designate by notice duly given in accordance with this
paragraph):
To Bank at:
To Chase at:
The Manager
Global Custody Division
Chase Manhattan Bank NA
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
14. This Agreement shall not be assignable by either party but shall bind
any successor interest of Chase and Bank, respectively.
15. This Agreement shall be governed by and construed in accordance with .
Law.
If the foregoing correctly sets forth the understanding between Bank and Chase
with respect to Bank's services in connection with the Account, kindly sign and
return to us the enclosed additional copy of this letter.
Very truly yours,
THE CHASE MANHATTAN BANK,
N.A.
By_________________
The foregoing is hereby agreed
to this ________ day of ______
By_______________________
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GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective _________________________, 199__, and is between THE
CHASE MANHATTAN BANK, N.A. (the "Bank") and
_______________________________________________
__________________________________ (the "Customer").
1. Customer Accounts.
The Bank agrees to establish and maintain the following accounts
("Accounts"):
(a) A custody account in the name of the Customer ("Custody
Account") for any and all stocks, shares, bonds, debentures,
notes, mortgages or other obligations for the payment of
money, bullion, coin and any certificates, receipts, warrants
or other instruments representing rights to receive, purchase
or subscribe for the same or evidencing or representing any
other rights or interests therein and other similar property
whether certificated or uncertificated as may be received by
the Bank or its Subcustodian (as defined in Section 3) for the
account of the Customer ("Securities"); and
(b) A deposit account in the name of the Customer ("Deposit
Account") for any and all cash in any currency received by the
Bank or its subcustodian for the account of the Customer,
which cash shall not be subject to withdrawal by draft or
check.
The Customer warrants its authority to: 1) deposit the cash and Securities
("Assets") received in the Accounts and 2) give Instructions (as defined in
Section 11) concerning the Accounts. The Bank may deliver securities of the same
class in place of those deposited in the Custody Account.
Upon written agreement between the Bank and the Customer, additional Accounts
may be established and separately accounted for as additional Accounts under the
terms of this Agreement.
2. Maintenance of Securities and Cash at Bank and Subcustodian Locations.
Unless Instructions specifically require another location acceptable to
the Bank:
(a) Securities will be held in the country or other jurisdiction
in which the principal trading market for such Securities is
located, where such Securities are to be presented for payment
or where such Securities are acquired; and
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(b) Cash will be credited to an account in a country or other
jurisdiction in which such cash may be legally deposited or is
the legal currency for the payment of public or private debts.
Cash may be held pursuant to Instructions in either interest or non-interest
bearing accounts as may be available for the particular currency. To the extent
Instructions are issued and the Bank can comply with such Instructions, the Bank
is authorized to maintain cash balances on deposit for the Customer with itself
or one of its affiliates at such reasonable rates of interest as may from time
to time be paid on such accounts, or in non-interest bearing accounts as the
Customer may direct, if acceptable to the Bank.
If the Customer wishes to have any of its Assets held in the custody of an
institution other than the established Subcustodians as defined in Section 3 (or
their securities depositories), such arrangement must be authorized by a written
agreement, signed by the Bank and the Customer.
6. Custody Account Transactions.
(a) Securities will be transferred, exchanged or delivered by the
Bank or its Subcustodian upon receipt by the Bank of
Instructions which include all information required by the
Bank. Settlement and payment for Securities received for, and
delivery of Securities out of, the Custody Account may be made
in accordance with the customary or established securities
trading or securities processing practices and procedures in
the jurisdiction or market in which the transaction occurs,
including, without limitation, delivery of Securities to a
purchaser, dealer or their agents against a receipt with the
expectation of receiving later payment and free delivery.
Delivery of Securities out of the Custody Account may also be
made in any manner specifically required by Instructions
acceptable to the Bank.
(b) The Bank, in its discretion, may credit or debit the Accounts
on a contractual settlement date with cash or Securities with
respect to any sale, exchange or purchase of Securities.
Otherwise, such transactions will be credited or debited to
the Accounts on the date cash or Securities are actually
received by the Bank and reconciled to the Account.
(i) The Bank may reverse credits or debits made to the Accounts in
its discretion if the related transaction fails to settle
within a reasonable period, determined by the Bank in its
discretion, after the contractual settlement date for the
related transaction.
(ii) If any Securities delivered pursuant to this Section 6 are
returned by the recipient thereof, the Bank may reverse the
credits and debits of the particular transaction at any time.
7. Actions of the Bank.
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The Bank shall follow Instructions received regarding assets held in
the Accounts. However, until it receives Instructions to the contrary,
the Bank will:
(a) Present for payment any Securities which are called, redeemed
or retired or otherwise become payable and all coupons and
other income items which call for payment upon presentation,
to the extent that the Bank or Subcustodian is actually aware
of such opportunities.
(b) Execute in the name of the Customer such ownership and other
certificates as may be required to obtain payments in respect
of Securities.
(c) Exchange interim receipts or temporary Securities for
definitive Securities.
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(d) Appoint brokers and agents for any transaction involving the
Securities, including, without limitation, affiliates of the
Bank or any Subcustodian.
(e) Issue statements to the Customer, at times mutually agreed
upon, identifying the Assets in the Accounts.
The Bank will send the Customer an advice or notification of any
transfers of Assets to or from the Accounts. Such statements, advices
or notifications shall indicate the identity of the entity having
custody of the Assets. Unless the Customer sends the Bank a written
exception or objection to any Bank statement within sixty (60) days of
receipt, the Customer shall be deemed to have approved such statement.
In such event, or where the Customer has otherwise approved any such
statement, the Bank shall, to the extent permitted by law, be released,
relieved and discharged with respect to all matters set forth in such
statement or reasonably implied therefrom as though it had been settled
by the decree of a court of competent jurisdiction in an action where
the Customer and all persons having or claiming an interest in the
Customer or the Customer's Accounts were parties.
All collections of funds or other property paid or distributed in
respect of Securities in the Custody Account shall be made at the risk
of the Customer. The Bank shall have no liability for any loss
occasioned by delay in the actual receipt of notice by the Bank or by
its Subcustodians of any payment, redemption or other transaction
regarding Securities in the Custody Account in respect of which the
Bank has agreed to take any action under this Agreement.
8. Corporate Actions; Proxies; Tax Reclaims.
a. Corporate Actions. Whenever the Bank receives information
concerning the Securities which requires discretionary action
by the beneficial owner of the Securities (other than a
proxy), such as subscription rights, bonus issues, stock
repurchase plans and rights offerings, or legal notices or
other material intended to be transmitted to securities
holders ("Corporate Actions"), the Bank will give the Customer
notice of such Corporate Actions to the extent that the Bank's
central corporate actions department has actual knowledge of a
Corporate Action in time to notify its customers.
When a rights entitlement or a fractional interest resulting
from a rights issue, stock dividend, stock split or similar
Corporate Action is received which bears an expiration date,
the Bank will endeavor to obtain Instructions from the
Customer or its Authorized Person, but if Instructions are not
received in time for the Bank to take timely action, or actual
notice of such Corporate Action was received too late to seek
Instructions, the Bank is authorized to sell such rights
entitlement or fractional interest and to credit the Deposit
Account with the proceeds or take any other action it deems,
in good faith, to be appropriate in which case it shall be
held harmless for any such action.
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b. Proxy Voting. The Bank will deliver proxies to the Customer or
its designated agent pursuant to special arrangements which
may have been agreed to in writing. Such proxies shall be
executed in the appropriate nominee name relating to
Securities in the Custody Account registered in the name of
such nominee but without indicating the manner in which such
proxies are to be voted; and where bearer Securities are
involved, proxies will be delivered in accordance with
Instructions. Proxy voting services may be provided directly
by the Bank or, in whole or in part, by one or more affiliates
of the Bank; provided that the Bank shall be liable for the
performance of any such affiliates to the same extent as the
Bank would have been if it performed such services itself.
c. Tax Reclaims. (i) Subject to the provisions hereof, the Bank
will apply for a reduction of withholding tax and any refund
of any tax paid or tax credits which apply in each applicable
market in respect of income payments on Securities for the
benefit of the Customer which the Bank believes may be
available to such Customer.
(ii) The provision of tax reclaim services by the Bank is
conditional upon the Bank receiving from the
beneficial owner of Securities (A) a declaration of
its identity and place of residence and (B) certain
other documentation (pro forma copies of which are
available from the Bank). The Customer acknowledges
that, if the Bank does not receive such declarations,
documentation and information, additional United
Kingdom taxation will be deducted from all income
received in respect of Securities issued outside the
United Kingdom and that U.S. non-resident alien tax
or U.S. backup withholding tax will be deducted from
U.S. source income. The Customer shall provide to the
Bank such documentation and information as it may
require in connection with taxation, and warrants
that, when given, this information shall be true and
correct in every respect, not misleading in any way,
and contain all material information. The Customer
undertakes to notify the Bank immediately if any such
information requires updating or amendment.
(iii) The Bank shall not be liable to the Customer or any
third party for any tax, fines or penalties payable
by the Bank or the Customer, and shall be indemnified
accordingly, whether these result from the inaccurate
completion of documents by the Customer or any other
person, or as a result of the provision to the Bank
or any third party of inaccurate or misleading
information or the withholding of material
information by the Customer or any other person, or
as a result of any delay of any revenue authority or
any other matter beyond the control of the Bank.
(iv) The Customer confirms that the Bank is authorized to
deduct from any cash received or credited to the Cash
Account any taxes or levies required by any revenue
or governmental authority for whatever reason in
respect of the Securities or Cash Accounts.
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(v) The Bank shall perform tax reclaim services only with
respect to taxation levied by the revenue authorities
of the countries notified to the Customer from time
to time and the Bank may, by notification in writing,
at its absolute discretion supplement or amend the
markets in which the tax reclaim services are
offered. Other than as expressly provided in this
subclause, the Bank shall have no responsibility with
regard to the Customer's tax position or status in
any jurisdiction.
(vi) The Customer confirms that the Bank is authorized to
disclose any information requested by any revenue
authority or any governmental body in relation to the
Customer or the Securities and/or Cash held for the
Customer.
(vii) Tax reclaim services may be provided directly by the
Bank or, in whole or in part, by one or more
affiliates of the Bank: provided that the Bank shall
be liable for the performance of any such affiliate
to the same extent as the Bank would have been if it
performed such services itself.
9. Nominees.
Securities which are ordinarily held in registered form may be
registered in a nominee name of the Bank, Subcustodian or securities
depository, as the case may be. The Bank may without notice to the
Customer cause any such Securities to cease to be registered in the
name of any such nominee and to be registered in the name of the
Customer. In the event that any Securities registered in a nominee name
are called for partial redemption by the issuer, the Bank may allot the
called portion to the respective beneficial holders of such class of
security in any manner the Bank deems to be fair and equitable. The
Customer agrees to hold the Bank, Subcustodians, and their respective
nominees harmless from any liability arising directly or indirectly
from their status as a mere record holder of Securities in the Custody
Account.
10. Authorized Persons.
As used in this Agreement, the term "Authorized Person" means employees
or agents including investment managers as have been designated by
written notice from the Customer or its designated agent to act on
behalf of the Customer under this Agreement. Such persons shall
continue to be Authorized Persons until such time as the Bank receives
Instructions from the Customer or its designated agent that any such
employee or agent is no longer an Authorized Person.
11. Instructions.
The term "Instructions" means instructions of any Authorized Person
received by the Bank, via telephone, telex, TWX, facsimile
transmission,
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bank wire or other teleprocess or electronic instruction or trade
information system acceptable to the Bank which the Bank believes in
good faith to have been given by Authorized Persons or which are
transmitted with proper testing or authentication pursuant to terms and
conditions which the Bank may specify. Unless otherwise expressly
provided all Instructions shall continue in full force and effect until
canceled or superseded.
Any Instructions delivered to the Bank by telephone shall promptly
thereafter be confirmed in writing by an Authorized Person (which
confirmation may bear the facsimile signature of such Person), but the
Customer will hold the Bank harmless for the failure of an Authorized
Person to send such confirmation in writing, the failure of such
confirmation to conform to the telephone instructions received or the
Bank's failure to produce such confirmation at any subsequent time. The
Bank may electronically record any Instructions given by telephone, and
any other telephone discussions with respect to the Custody Account.
The Customer shall be responsible for safeguarding any testkeys,
identification codes or other security devices which the Bank shall
make available to the Customer or its Authorized Persons.
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12. Standard of Care; Liabilities.
(a) The Bank shall be responsible for the performance of only such
duties as are set forth in this Agreement or expressly
contained in Instructions which are consistent with the
provisions of this Agreement as follows:
(i) The Bank will use reasonable care with respect to its
obligations under this Agreement and the safekeeping
of Assets. The Bank shall be liable to the Customer
for any loss which shall occur as the result of the
failure of a Subcustodian to exercise reasonable care
with respect to the safekeeping of such Assets to the
same extent that the Bank would be liable to the
Customer if the Bank were holding such Assets in New
York. In the event of any loss to the Customer by
reason of the failure of the Bank or its Subcustodian
to utilize reasonable care, the Bank shall be liable
to the Customer only to the extent of the Customer's
direct damages, to be determined based on the market
value of the property which is the subject of the
loss at the date of discovery of such loss and
without reference to any special conditions or
circumstances.
(ii) The Bank will not be responsible for any act,
omission, default or the solvency of any broker or
agent which it or a Subcustodian appoints unless such
appointment was made negligently or in bad faith.
(iii) The Bank shall be indemnified by and without
liability to the Customer for any action taken or
omitted by the Bank whether pursuant to Instructions
or otherwise within the scope of this Agreement if
such act or omission was in good faith, without
negligence. In performing its obligations under this
Agreement, the Bank may rely on the genuineness of
any document which it believes in good faith to have
been validly executed.
(iv) The Customer agrees to pay for and hold the Bank
harmless from any liability or loss resulting from
the imposition or assessment of any taxes or other
governmental charges, and any related expenses with
respect to income from or Assets in the Accounts.
(v) The Bank shall be entitled to rely and may act, upon
the advice of counsel (who may be counsel for the
Customer) on all matters and shall be without
liability for any action reasonably taken or omitted
pursuant to such advice.
(vi) The Bank need not maintain any insurance for the
benefit of the Customer.
(vii) Without limiting the foregoing, the Bank shall not be
liable for any loss which results from: 1) the
general
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risk of investing, or 2) investing or holding Assets
in a particular country including, but not limited
to, losses resulting from nationalization,
expropriation or other governmental actions;
regulation of the banking or securities industry;
currency restrictions, devaluations or fluctuations;
and market conditions which prevent the orderly
execution of securities transactions or affect the
value of Assets.
(vii) Neither party shall be liable to the other for any
loss due to forces beyond their control including,
but not limited to strikes or work stoppages, acts of
war or terrorism, insurrection, revolution, nuclear
fusion, fission or radiation, or acts of God.
(b) Consistent with and without limiting the first paragraph of
this Section 12, it is specifically acknowledged that the Bank
shall have no duty or responsibility to:
(i) question Instructions or make any
suggestions to the Customer or an Authorized
Person regarding such Instructions;
(ii) supervise or make recommendations with
respect to investments or the retention of
Securities;
(iii) advise the Customer or an Authorized Person
regarding any default in the payment of
principal or income of any security other
than as provided in Section 5(c) of this
Agreement.
(iv) evaluate or report to the Customer or an
Authorized Person regarding the financial
condition of any broker, agent or other
party to which Securities are delivered or
payments are made pursuant to this
Agreement:
(v) review or reconcile trade confirmations
received from brokers. The Customer or its
Authorized Persons (as defined in Section
10) issuing Instructions shall bear any
responsibility to review such confirmations
against Instructions issued to and
statements issued by the Bank.
(c) The Customer authorizes the Bank to act under this Agreement
notwithstanding that the Bank or any of its divisions or
affiliates may have a material interest in a transaction, or
circumstances are such that the Bank may have a potential
conflict of duty or interest including the fact that the Bank
or any of its affiliates may provide brokerage services to
other customers, act as financial advisor to the issuer of
Securities, act as a lender to the issuer of Securities, act
in the same transaction as agent for more than one customer,
have a material interest in the issue of Securities, or earn
profits from any of the activities listed herein.
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13. Fees and Expenses.
The Customer agrees to pay the Bank for its services under this
Agreement such amount as may be agreed upon in writing, together with
the Bank's reasonable out-of-pocket or incidental expenses, including,
but not limited to, legal fees. The Bank shall have a lien on and is
authorized to charge any Accounts of the Customer for any amount owing
to the Bank under any provision of this Agreement.
14. Miscellaneous.
(a) Foreign Exchange Transactions. To facilitate the
administration of the Customer's trading and investment
activity, the Bank is authorized to enter into spot or forward
foreign exchange contracts with the Customer or an Authorized
Person for the Customer and may also provide foreign exchange
through its subsidiaries, affiliates or Subcustodians.
Instructions, including standing instructions, may be issued
with respect to such contracts but the Bank may establish
rules or limitations concerning any foreign exchange facility
made available. In all cases where the Bank, its subsidiaries,
affiliates or Subcustodians enter into a foreign exchange
contract related to Accounts, the terms and conditions of the
then current foreign exchange contract of the Bank, its
subsidiary, affiliate or Subcustodian and, to the extent not
inconsistent, this Agreement shall apply to such transaction.
(b) Certification of Residency, etc. The Customer certifies that
it is a resident of the United States and agrees to notify the
Bank of any changes in residency. The Bank may rely upon this
certification or the certification of such other facts as may
be required to administer the Bank's obligations under this
Agreement. The Customer will indemnify the Bank against all
losses, liability, claims or demands arising directly or
indirectly from any such certifications.
(c) Access to Records. The Bank shall allow the Customer's
independent public accountant reasonable access to the records
of the Bank relating to the Assets as is required in
connection with their examination of books and records
pertaining to the Customer's affairs. Subject to restrictions
under applicable law, the Bank shall also obtain an
undertaking to permit the customer's independent public
accountants reasonable access to the records of any
Subcustodian which has physical possession of any Assets as
may be required in connection with the examination of the
Customer's books and records.
(d) Governing Law: Successors and Assigns. This Agreement shall be
governed by the laws of the State of New York and shall not be
assignable by either party, but shall bind the successors in
interest of the Customer and the Bank.
(e) Entire Agreement; Applicable Riders. Customer represents that
the Assets deposited in the Accounts are (Check one):
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___ Employee Benefit Plan or other assets subject to the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA");
____ Mutual Fund assets subject to certain Securities and
Exchange Commission ("SEC") rules and regulations;
____ Neither of the above
This Agreement consists exclusively of this document together with
Schedule A, Exhibits I - ______ and the following Rider(s) [Check
applicable rider(s)]:
____ ERISA
____ MUTUAL FUND
____ SPECIAL TERMS AND CONDITIONS
There are no other provisions of this Agreement and this
Agreement supersedes any other agreements, whether written or
oral, between the parties. Any amendment to this Agreement
must be in writing, executed by both parties.
(f) Severability. In the event that one or more provisions of this
Agreement are held invalid, illegal or enforceable in any
respect on the basis of any particular circumstances or in any
jurisdiction, the validity, legality and enforceability of
such provision or provisions under other circumstances or in
other jurisdictions and of the remaining provisions will not
in any way be affected or impaired.
(g) Waiver. Except as otherwise provided in this Agreement, no
failure or delay on the part of either party in exercising any
power or right under this Agreement operates as a waiver, nor
does any single or partial exercise of any power or right
preclude any other or further exercise, or the exercise of any
other power or right. No waiver by a party of any provision of
this Agreement, or waiver of any breach or default, is
effective unless in writing and signed by the party against
whom the waiver is to be enforced.
(h) Notices. All notices under this Agreement shall be effective
when actually received. Any notices or other communications
which may be required under this Agreement are to be sent to
the parties at the following addresses or such other addresses
as may subsequently be given to the other party in writing:
Bank: The Chase Manhattan Bank, X.X.
Xxxxx Metro Tech Center
Xxxxxxxx, XX 00000
Attention: Global Custody Division
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or telex:____________________________
Customer: _____________________________________
_____________________________________
_____________________________________
or telex:_____________________________
(i) Termination. This Agreement may be terminated by the Customer
or the Bank by giving sixty (60) days written notice to the
other, provided that such notice to the Bank shall specify the
names of the persons to whom the Bank shall deliver the Assets
in the Accounts. If notice of termination is given by the
Bank, the Customer shall, within sixty (60) days following
receipt of the notice, deliver to the Bank Instructions
specifying the names of the persons to whom the Bank shall
deliver the Assets. In either case the Bank will deliver the
Assets to the persons so specified, after deducting any
amounts which the Bank determines in good faith to be owed to
it under Section 13. If within sixty (60) days following
receipt of a notice of termination by the Bank, the Bank does
not receive Instructions from the Customer specifying the
names of the persons to whom the Bank shall deliver the
Assets, the Bank, at its election, may deliver the Assets to a
bank or trust company doing business in the State of New York
to be held and disposed of pursuant to the provisions of this
Agreement, or to Authorized Persons, or may continue to hold
the Assets until Instructions are provided to the Bank.
CUSTOMER
By:___________________________________
Title
THE CHASE MANHATTAN BANK, N.A.
By:___________________________________
Title
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STATE of )
: ss.
COUNTY OF )
On this _________________ day of ____________________________ , 19 _______ ,
before me personally came ______________________________ , to me known, who
being by me duly sworn, did depose and say that he/she resides in ______________
at ____________________ ; ____________________ that he/she is __________________
of ___________________ , the entity described in and which executed the
foregoing instrument; that he/she knows the seal of said entity, that the seal
affixed to said instrument is such seal, that it was so affixed by order of said
entity, and that he/she signed his/her name thereto by like order.
______________________________
Sworn to before me this _________________
day of ________, 19______.
________________________
Notary
000
00
XXXXX XX XXX XXXX )
: ss.
COUNTY OF NEW YORK )
On this __________________ day of ________________________ , 19 _____ , before
me personally came __________________________ , to me known, who being by me
duly sworn, did depose and say that he/she resides in __________________ at
_________________ ; that he/she is a Vice President of THE CHASE MANHATTAN BANK,
(National Association), the corporation described in and which executed the
foregoing instrument: that he/she knows the seal of said corporation, that the
seal affixed to said instrument is such corporate seal, that it was so affixed
by order of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like order.
__________________________
Sworn to before me this _________________
day of ________, 19______.
_____________________
Notary
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Mutual Fund Rider to Global Custody Agreement
Between The Chase Manhattan Bank, N.A. and
____________________________
__________________, effective ______
Customer represents that the Assets placed in the Bank's custody are subject to
the Investment Company Act of 1940 (the Act), as the same may be amended from
time to time.
Except to the extent that the Bank has specifically agreed to comply with a
condition of a rule, regulation, interpretation promulgated by or under the
authority of the SEC or the Exemptive Order applicable to accounts of this
nature issued to the Bank (Investment Company Act of 1940, Release No. 12053,
November 20, 1981), as amended, or unless the Bank has otherwise specifically
agreed, the Customer shall be solely responsible to assure that the maintenance
of Assets under this Agreement complies with such rules, regulations,
interpretations or exemptive order promulgated by or under the authority of the
Securities Exchange Commission.
The following modifications are made to the Agreement:
Section 3. Subcustodians and Securities Depositories.
Add the following language to the end of Section 3:
The terms Subcustodian and securities depositories as used in this Agreement
shall mean a branch of qualified U.S. bank, an eligible foreign custodian or an
eligible foreign securities depository, which are further defined as follows:
(a) "qualified U.S. Bank" shall mean a qualified U.S. bank as defined in
Rule 17f-5 under the Investment Company Act of 1940;
(b) "eligible foreign custodian" shall mean (i) a banking institution or
trust company incorporated or organized under the laws of a country
other than the United States that is regulated as such by that
country's government or an agency thereof and that has shareholders'
equity in excess of $200 million in U.S. currency (or a foreign
currency equivalent thereof), (ii) a majority owned direct or indirect
subsidiary of a qualified U.S. bank or bank holding company that is
incorporated or organized under the laws of a country other than the
United States and that has shareholders' equity in excess of $100
million in U.S. currency (or a foreign currency equivalent thereof)
(iii) a banking institution or trust company incorporated or organized
under the laws of a country other than the United States or a
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26
majority owned direct or indirect subsidiary of a qualified U.S. bank
or bank holding company that is incorporated or organized under the
laws of a country other than the United States which has such other
qualifications as shall be specified in Instructions and approved by
the Bank; or (iv) any other entity that shall have been qualified by
exemptive order, rule or other appropriate action of the SEC; and
(c) "eligible foreign securities depository" shall mean a securities
depository or clearing agency, incorporated or organized under the laws
of a country other than the United States, which operates (i) the
central system for handling securities or equivalent book- entries in
that country, or (ii) a transnational system for the central handling
of securities or equivalent book-entries.
The Customer represents that its Board of Directors has approved each of the
Subcustodians listed in Schedule A to this Agreement and the terms of the
subcustody agreements between the Bank and each Subcustodian, which are attached
as Exhibits I through _____ of Schedule A, and further represents that its Board
has determined that the use of each Subcustodian and the terms of each
subcustody agreement are consistent with the best interests of the Fund(s) and
its (their) shareholders. The Bank will supply the Customer with any amendment
to Schedule A for approval. The Customer has supplied or will supply the Bank
with certified copies of its Board of Directors resolution(s) with respect to
the foregoing prior to placing Assets with any Subcustodian so approved.
Section II. Instructions.
Add the following language to the end of Section 11:
Deposit Account payments and Custody Account Transactions made pursuant to
Section 5 and 6 of this Agreement may be made only for the purposes listed
below. Instructions must specify the purpose for which any transaction is to be
made and Customer shall be solely responsible to assure that Instructions are in
accord with any limitations or restrictions applicable to the Customer by law or
as may be set forth in its prospectus.
(a) In connection with the purchase or sale of Securities at prices as
confirmed by Instructions;
(b) When Securities are called, redeemed or retired, or otherwise become
payable;
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(c) In exchange for or upon conversion into other securities alone or other
securities and cash pursuant to any plan or merger consolidation,
reorganization, recapitalization or readjustment;
(d) Upon conversion of Securities pursuant to their terms into other
securities;
(e) Upon exercise of subscription, purchase or other similar rights
represented by Securities;
(f) For the payment of interest, taxes, management or supervisory fees,
distributions or operating expenses;
(g) In connection with any borrowings by the Customer requiring a pledge of
Securities, but only against receipt of amounts borrowed;
(h) In connection with any loans, but only against receipt of adequate
collateral as specified in Instructions which shall reflect any
restrictions applicable to the Customer.
(i) For the purpose of redeeming shares of the capital stock of the
Customer and the delivery to, or the crediting to the account of, the
Bank, its Subcustodian or the Customer's transfer agent, such shares to
be purchased or redeemed;
(j) For the purpose of redeeming in kind shares of the Customer against
delivery to the Bank, its Subcustodian or the Customer's transfer agent
of such shares to be so redeemed;
(k) For delivery in accordance with the provisions of any agreement among
the Customer, the Bank and a broker-dealer registered under the
Securities Exchange Act of 1934 (the "Exchange Act") and a member of
The National Association of Securities Dealers, Inc. ("NASD"), relating
to compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other arrangements
in connection with transactions by the Customer;
(l) For release of Securities to designated brokers under covered call
options, provided, however, that such Securities shall be released only
upon payment to the Bank of monies for the premium due and a receipt
for the Securities which are to be held in escrow. Upon exercise of the
option, or at expiration, the Bank will receive from brokers the
Securities previously deposited. The Bank will act strictly in
accordance with Instructions in the delivery of Securities to be held
in escrow and will have no responsibility or liability for any such
Securities which are not returned promptly when due other than to make
proper request for such return;
(m) For spot or forward foreign exchange transactions to facilitate
security trading, receipt of income from Securities or related
transactions:
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(n) For other proper purposes as may be specified in Instructions issued by
an officer of the Customer which shall include a statement of the
purpose for which the delivery or payment is to be made, the amount of
the payment or specific Securities to be delivered, the name of the
person or persons to whom delivery or payment is to be made, and a
certification that the purpose is a proper purpose under the
instruments governing the Customer; and
(o) Upon the termination of this Agreement as set forth in Section 14(i).
Section 12. Standard of Care; Liabilities.
Add the following subsection (c) to Section 12:
(c) The Bank hereby warrants to the Customer that in its opinion, after due
inquiry, the established procedures to be followed by each of its
branches, each branch of a qualified U.S. bank, each eligible foreign
custodian and each eligible foreign securities depository holding the
Customer's Securities pursuant to this Agreement afford protection for
such Securities at least equal to that afforded by the Bank's
established procedures with respect to similar securities held by the
Bank and its securities depositories in New York.
Section 14. Access to Records.
Add the following language to the end of Section 14(c):
Upon reasonable request from the Customer the Bank shall furnish the Customer
such reports (or portions thereof) of the Bank's system of internal accounting
controls applicable to the Bank's duties under this Agreement. The Bank shall
endeavor to obtain and furnish the Customer with such similar reports as it may
reasonably request with respect to each Subcustodian and securities depository
holding the Customer's assets.
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CUSTODY AGREEMENT
THIS AGREEMENT is executed as of the 7th day of November, 1995, between
SAFECO COMMON STOCK TRUST, a Delaware business trust ("Trust"), and U.S. BANK OF
WASHINGTON, N.A., a national banking association ("Bank");
WHEREAS, the Trust is registered with the Securities and Exchange
Commission as a series type open-end, management investment company under the
Investment Company Act of 1940, as amended ("1940 Act"), and has caused its
shares of beneficial interest to be registered for sale to the public under the
Securities Act of 1933, as amended ("1933 Act"), and various state securities
laws;
WHEREAS, the Trust may, from time to time, organize one or more series
of shares, in addition to the series set forth in Exhibit A attached hereto,
each of which shall represent an interest in a separate portfolio of cash,
securities and other assets (all such existing and additional series now or
hereafter listed on Exhibit A are referred to herein individually, as a "Series"
and collectively, as "the Series,") and
WHEREAS, the Trust desires to appoint the Custodian as custodian on
behalf of the Series in accordance with the provisions of the 1940 Act and the
rules and regulations thereunder, under the terms and conditions set forth in
this Agreement, and the Custodian has agreed to act as custodian;
NOW, THEREFORE, it is agreed by and between the parties hereto as
follows:
1. Appointment. The Trust on behalf of the Series hereby appoints the
Bank as custodian of all of the Series' cash, securities and other assets, and
the Bank hereby agrees to act as such upon the terms and conditions set forth in
this Agreement.
2. Delivery, Safe Keeping. The Trust will deliver or cause to be
delivered to the Bank from time to time all cash, securities and other assets
acquired by the Series from time to time during the term of this Agreement and
shall specify the Series to which such cash, securities and other assets are to
be allocated. The Bank shall keep safely such cash, securities and other assets
as custodian for the Series and shall deposit such cash, securities and other
assets with the Bank for the account of the Series.
3. Registration of Securities. The Bank will hold stocks and other
registerable portfolio securities (other than bearer securities) registered in
the name of the Series, or in the name of any nominee of the Trust on behalf of
the Series, or in the name of any nominee of the Bank, or in the name or nominee
name of any sub-custodian or agent appointed under paragraph 4 for whose
fidelity and liabilities the Bank shall be fully responsible, or in street
certificate form, so-called, with or without any indication of fiduciary
capacity. Unless otherwise instructed by the Trust, the Bank will register all
such portfolio securities in the name of its authorized nominee. In any event,
all such securities and other assets shall be held in an account of the Bank
containing only assets of a Series, or only assets held by the Bank as a
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fiduciary or custodian for customers, and provided further, that the records of
the Bank shall indicate at all times the Series or other customers for which
such securities and other assets are held in such account and their respective
interests therein. The Trust agrees to hold the Bank and its nominee harmless
for any liability as a record holder of securities held in custody.
4. Custody of Moneys or Securities/Appointment of Sub-custodians and
Agents. Notwithstanding any other provisions of this Agreement, all or any of
the cash, securities or other assets of a Series may be held in the Bank's
custody, provided, however, that the Bank may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust company
which is itself qualified under the 1940 Act to act as a sub-custodian or its
agent to carry out such of the provisions of this Agreement as the Bank may from
time to time direct. The appointment of any sub-custodian or agent shall not
relieve the Bank of its responsibilities or liabilities hereunder. Neither the
Bank nor any sub-custodian or agent shall be entitled to reimbursement by Trust
or the Series for any fees or expenses of any sub-custodian or agent.
5. Deposit of Trust Assets in Securities Systems. Upon order of the
Trust on behalf of any Series, the Bank may deposit and/or maintain securities
owned by a Series in a clearing agency registered with the Securities and
Exchange Commission ("SEC") under Section 17A of the Securities Exchange Act of
1934, as amended, which acts as a securities depository (or other entities which
may be otherwise authorized by the SEC to serve in the capacity of depository or
clearing agent for the securities or other assets of investment companies), or
in the book-entry system authorized by the U.S. Department of the Treasury and
certain federal agencies, collectively referred to herein as "Securities
Systems" in accordance with applicable Federal Reserve Board and SEC rules and
regulations, if any, and subject to the following provisions:
(a) The Bank may keep securities of the Series in a Securities
System provided that such securities are represented in an
account ("Account") of the Bank in the Securities System which
shall not include any assets of the Bank other than assets
held as a fiduciary, custodian or otherwise for customers;
(b) The records of the Bank with respect to securities of the
Series that are maintained in a Securities System shall
identify by book-entry those securities belonging to the
Series;
(c) The Bank shall pay for securities purchased for the
account of the Series upon (i) receipt of advice from the
Securities System that such securities have been
transferred to the Account, and (ii) the making of an
entry on the records of the Bank to reflect such payment
and transfer for the account of the Series. The Bank
shall transfer securities sold for the account of the
Series upon (i) receipt of 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 Bank to reflect such transfer
and payment for the account of the Series. Copies of all
advice from the Securities System of transfers of
securities for the account of the Series shall identify
the Series, be maintained for the Series by the Bank and
be
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provided to the Trust at its request. Upon request, the Bank
shall furnish the Trust on behalf of the Series confirmation
of each transfer to or from the account of the Series in the
form of a written advice or notice and shall furnish to the
Trust on behalf of the Series copies of daily transaction
sheets reflecting each day's transactions in the Securities
System for the account of the Series;
(d) The Bank shall provide the Trust for the Series with any
report obtained by the Bank on the Securities System's
accounting system, internal accounting control and procedures
for safeguarding securities deposited in the Securities
System;
(e) The Bank shall exercise reasonable care and diligence in
the use of the Securities System on behalf of the Trust
and the Series. The Bank shall be liable to the Trust
for the benefit of the Series for any loss or damage to
the Series resulting from use of the Securities System by
reason of any negligence, misfeasance or misconduct of
the Bank or any of its agents, or of any of the Bank's or
any of its agent's employees, or from failure of the Bank
or any such agent to enforce effectively such rights as
it may have against the Securities System. At the
election of the Trust, it shall be entitled to be
subrogated to the rights of the Bank with respect to any
claim against the Securities System or any other person
which the Bank may have as a consequence of any such loss
or damage if and to the extent that the Series has not
been made whole for any such loss or damage.
6. Segregated Account. The Bank shall upon order of the Trust on behalf
of each applicable Series establish and maintain a segregated account or
accounts for and on behalf of each such Series, into which account or accounts
may be transferred cash, securities, and/or other assets, including securities
maintained in an account by the Bank pursuant to paragraph 5 hereof, (i) for the
purposes of compliance by the Series with the procedures required by Investment
Company Act Release No. 10666, or any subsequent release or releases of the SEC
relating to the maintenance of segregated accounts by registered investment
companies and (ii) for other proper corporate purposes, but only, in the case of
clause (ii), upon receipt of, in addition to an order of the Trust on behalf of
the applicable Series, a writing signed by any two individuals whose names and
signatures are covered by the most recent letter provided to the Bank as
provided in paragraph 12 setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper corporate purposes.
7. Purchases of Securities. Upon the order of the Trust on behalf of
the Series, the Bank shall receive all securities purchased for the account of
the Trust and make payment according to the terms of the order insofar as funds
are available.
8. Sale and Delivery of Securities.
(a) Upon the order of the Trust on behalf of the Series, the
Bank shall make delivery of securities held by it as custodian or held in a
Securities System account of the Bank which have been sold by the Trust. Such
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delivery shall be made upon payment in a manner satisfactory to the Bank of the
amount specified in said order. The Bank shall also deliver such securities as
may be called, redeemed, retired or otherwise become payable.
(b) Subparagraph (a) shall not prevent the Bank from making:
(i) Delivery of securities for examination to
the broker selling the same in accord with
the "street" delivery custom whereby such
securities are delivered to such broker in
exchange for a delivery receipt exchanged on
the same day for an uncertified check of
such broker to be presented on the same day
for certification;
(ii) Delivery of securities as collateral on
borrowing effected by the Trust or any
Series; and
(iii) Delivery of securities owned by the Trust or
any Series as a redemption in kind of
securities issued by the Trust or any
Series.
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9. Collections.
(a) On a timely basis, the Bank shall: (i) collect, receive
and hold on deposit for the account of the appropriate Series, all income and
other payments with respect to the securities held by it on behalf of a Series
as custodian; (ii) advise the Trust once each business day of such receipts;
(iii) execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with the collection of bond and note
coupons; (iv) present for payment all coupons and all other income items
requiring presentation, present for payment all securities which have become
payable at maturity, upon call for redemption or otherwise; (v) endorse for
collection checks, drafts or other negotiable instruments; and (vi) do all other
things which may be necessary or proper in connection with the receipt and
collection of any such item.
(b) The Bank shall not be under any obligation or duty to take
action to effect collection of any amount, if the securities upon which such
amount is payable are in default and payment is refused after due demand or
presentation. The Bank will, however, notify the Trust of such default and
refusal to pay.
10. Disbursements.
(a) Notwithstanding anything contained elsewhere in this
Agreement to the contrary and subparagraphs (b) and (c) below, the Bank shall
deliver funds of the Trust only upon the purchase of securities by the Trust on
behalf of the Series.
(b) Upon the order of the Trust for the Series, the Bank shall
make cash disbursements for the account of the Trust and any Series insofar as
funds are available for such disbursements, for the payment of taxes, expenses
and liabilities including, without limitation:
(i) Management fees payable under any management
agreement with SAFECO Asset Management
Company (or its successors) or any other
person selected to serve as an investment
adviser to the Trust or any Series.
(ii) Compensation payable by the Trust or any
Series to any person, firm or corporation,
including compensation payable to the Bank
under this Agreement.
(iii) Cash dividends or distributions for any
Series declared by the Board of Trustees of
the Trust.
(c) Without the order of the Trust, the Bank may make cash
disbursements for non-discretionary ministerial items, including but not limited
to expenses in handling securities, stamp taxes, reimbursement of the Bank for
its out-of-pocket expenses incurred in the performance of its duties hereunder
and other similar items in connection with its duties under this Agreement. The
Bank shall advise the Trust once each business day of disbursements so made.
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11. Redemption and Repurchase of Shares of the Trust. From such funds
as may be available for the purpose but subject to the limitations of the Trust
Instrument and any applicable votes of the Trust's Board of Trustees pursuant to
the Trust Instrument, the Bank shall, upon receipt of instructions from a
Series' transfer agent, make funds available for payment to shareholders who
have delivered to the transfer agent a request for redemption or repurchase of
their shares. If payment is to be made in kind, the instructions must be
accompanied by a certified copy of a resolution of the Trust's Board of Trustees
authorizing redemptions in kind. In connection with the redemption or repurchase
of shares of a Series, the Bank is authorized upon receipt of instructions from
the transfer agent to wire funds to or through a commercial bank designated by
the redeeming shareholders. In connection with the redemption or repurchase of
shares of any Series, the Bank shall honor checks drawn on the Bank by a
shareholder, which checks have been furnished by the Trust to the shareholder,
when presented to the Bank in accordance with such procedures and controls as
are mutually agreed upon from time to time between the Trust and the Bank.
12. Orders of the Trust.
(a) Except in the case of non-discretionary ministerial acts,
and as otherwise specifically provided in this Agreement, all action to be taken
by the Bank as custodian shall be taken upon the order of the Trust on behalf of
the Series. An "order" of the Trust on behalf of the Series shall consist of
written instructions with respect to a specified transaction, or transactions,
which instructions shall be signed by any two individuals whose names and
signatures are covered by the most recent letter addressed to the Bank setting
forth such names and signatures and signed by the President or Treasurer and
Secretary or Assistant Secretary of the Trust. An "order" of the Trust may also
consist of trade affirmations entered on an institutional delivery system by
representatives on behalf of the Trust. Such representatives will not affirm
trades on this Institutional Delivery system unless the transactions have been
signed by two authorized signers. An "order" may also consist of oral
instructions in the case of purchases and sales of shares of registered
investment companies by any Series, but only if the Bank reasonably believes
such instructions to have been provided by a person authorized to give such
instructions for the transaction involved and if such instruction is transmitted
and received in accordance with any procedures acceptable to both the Fund and
the Bank. Oral instructions shall not be accepted by the Bank for any other type
of transaction.
(b) Notwithstanding anything to the contrary contained in the
Agreement, no person authorized to give an "order" as described in the preceding
paragraph, Trustee, officer, employee or agent of the Trust shall have physical
access to the assets of any Series held by the Bank nor shall the Bank deliver
any assets of a Series for delivery to an account of such person; provided,
however, that nothing in this sub-paragraph (b) shall prohibit the Trust's
independent certified public accountant from examining or reviewing the assets
of the Series held by the Bank.
13. Forwarding of Information and Proxies. The Bank will forward
promptly to the Trust for each Series all information or documents which it may
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receive with respect to any securities held by a Series under this Agreement,
including all forms of proxy, proxy statements, notices, reports and other
financial information. Neither the Bank nor its nominee shall vote any of the
securities or authorize the voting of any securities or give any consent or take
any other action with respect thereto, except as otherwise provided herein,
unless directed to do so upon order of the Trust on behalf of any Series.
14. Reorganization or Liquidation, Etc. of the Trust. In the case of
the following transactions not in the ordinary course of business, namely, the
merger or consolidation of the Trust and another investment company, the sale by
the Trust of all, or substantially all, of its assets or the assets of a Series
to another investment company, or the liquidation or dissolution of the Trust or
a Series and distribution of the assets, the Bank shall deliver the securities
held by it under this Agreement and disburse cash only upon the order of the
Trust and upon receipt of opinion of counsel satisfactory to the Bank (who may
be counsel for the Trust) to the effect that all necessary corporate action
therefore has been taken, or, concurrently with the Bank's action will be taken.
15. Compensation. Each Series shall pay to the Bank compensation for
its services under this Agreement in accordance with the attached schedule of
charges set forth in Exhibit C which may be amended from time to time by mutual
agreement. In addition, each Series will reimburse the Bank for all
out-of-pocket expenses, including taxes and other charges required to be paid by
the Bank with respect to the property of each Series, incurred by the Bank in
the performance of its duties hereunder.
16. Responsibility.
(a) In the performance of its duties under this Agreement, the
Bank shall exercise reasonable care and diligence. The Bank shall be liable to
the Trust for the benefit of the Series for any loss or damage to the Series
resulting from any negligence, misfeasance or misconduct of the Bank or any of
its sub-custodians or agents, or of any of the Bank's or any agent's employees
in the performance of the Bank's duties under this Agreement.
(b) Except as otherwise provided herein, the Bank shall not
incur liability to anyone and shall be indemnified and held harmless by the
Trust and the Series from and against all liability, claims, demands, actions,
suits, costs or expenses (including the fees of its counsel) for anything done
or suffered by the Bank in good faith in accordance with an order of the Trust
or pursuant to the terms of this Agreement. The Bank may apply for and obtain
the advice and opinion of counsel to the Trust or its own counsel with respect
to questions of law and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice or opinion. The
Bank shall be protected in any action taken or omitted by it in reliance upon
any order, notice, request, certificate or other instrument reasonably believed
by it to be genuine.
(c) The Bank shall be under no duty or obligation to inquire
into and shall not be liable for:
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(i) The validity of the issue of any securities
purchased by or for the Trust or any Series,
the legality of the purchases thereof or the
propriety of the amount paid therefor;
(ii) The legality of any sale of any securities
by or for the Trust or any Series or on the
propriety of the amount for which the same
are sold;
(iii) The legality of an issue or sale of any
shares of the Trust or any Series or the
sufficiency of the amount to be received
therefor;
(iv) The legality of the repurchase of any shares
of the Trust or any Series or the propriety
of the amount to be paid therefor;
(v) The legality of the declaration of any
dividend by the Trust or any Series or the
legality of the issue of any securities held
by the Trust or any Series as a payment in
kind of such dividend;
(vi) Any property or moneys of the Trust or any
Series unless and until received by it, and
any such property or moneys delivered or
paid by it pursuant to the terms hereof.
(d) The Bank shall not be under any duty or obligation to
ascertain whether any securities at any time delivered to or held by it for the
account of a Series are such as may properly be held by a Series under the
provisions of the Trust's Instrument or Bylaws, any federal or state statutes or
any rule or regulation of any governmental agency.
17. 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 a Series is made by the Bank in advance of receipt of the
securities purchased in the absence of specific written instructions from the
Trust on behalf of such Series to so pay in advance, the Bank shall be
absolutely liable to the Trust for such securities to the same extent as if the
securities had been received by the Bank.
18. Records. The Bank shall with respect to each Series create and
maintain all records relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of the Trust under the
1940 Act, particularly Section 31 thereof and Rules 31a-1 and 31a-2 thereunder.
All such records shall be the property of the Trust and shall at all times
during the regular business hours of the Bank be open for inspection by duly
authorized officers, employees and agents of the Trust and employees and agents
of the SEC. The Bank shall, at the Trust's request, supply the Trust with a
tabulation of securities owned by each Series and held by the Bank and shall,
when requested to do so by the Trust and for such compensation as shall be
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agreed upon between the Trust and the Bank, include certificate numbers in such
tabulations.
19. Termination. This Agreement may be terminated at any time without
penalty with respect to one or more Series by execution of any amended Exhibit A
or in its entirety by written notice delivered by either party to the other. The
effective date of termination shall be as specified in such notice, except that
at the option of the Bank or the Trust, the effective date of the termination
may be postponed to a date not more than sixty (60) days from the date of the
delivery of such notice in order to give the Bank an opportunity to prepare for
the transfer of the Trust or any Series' assets or to give the Trust or any
Series an opportunity to make suitable arrangements for a successor custodian.
Upon termination of this Agreement, the Bank shall deliver at its office all
cash, securities and other assets held by it in accordance with paragraph 20.
20. Successor Custodian.
(a) If a successor custodian for the Trust or one or more of
the Series shall be appointed by the Trust's Board of Trustees, the Bank shall,
upon termination, deliver to such successor custodian at the office of the Bank
all cash and other assets of the Trust then held by it hereunder and, in the
case of securities, duly endorsed and in the form for transfer, all securities
of each applicable Series then held by it hereunder and shall transfer to an
account of the successor custodian all of the securities of each such Series
held in a Securities System. The Bank shall take all reasonable steps to assist
in the transfer of the cash, securities and other assets of the applicable
Series to the successor custodian.
(b) If no such successor custodian shall be appointed, the
Bank shall, in like manner, upon receipt of a certified copy of a vote of the
Trust's Board of Trustees, deliver at the office of the Bank and transfer such
cash, securities and other assets in accordance with such vote.
(c) In the event that no written order designating a successor
custodian or certified copy of a vote of the Board of Trustees shall have been
delivered to the Bank on or before the date when such termination shall become
effective, then the Bank shall have the right to deliver to a bank or trust
company of its own selection (which is a "bank" as defined in the 0000 Xxx)
doing business in Seattle, Washington, and having an aggregate capital, surplus,
and undivided profits, as shown by its last published report, of not less than
the amounts required by the 1940 Act, all cash, securities and other assets held
by the Bank on behalf of each applicable Series and all instruments held by the
Bank relative thereto and all other property held by it under this Agreement on
behalf of each applicable Series and to transfer to an account of such successor
custodian all the securities of each such Series held in any Securities System.
Thereafter, such bank or trust company shall be the successor of the Bank under
this Agreement.
(d) In the event that cash, securities and other assets remain
in the possession of the Bank after the date of termination hereof owing to
failure of the Trust to procure the certified copy of the vote referred to or
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of the Board of Trustees to appoint a successor custodian, the Bank shall be
entitled to fair compensation for its services during such period as the Bank
retains possession of such cash, securities and other assets and the provisions
of this Agreement relating to the duties and obligations of the Bank shall
remain in full force and effect.
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21. Notices. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto shall be
sufficiently given if addressed to such party and mailed (postage prepaid) or
delivered to it at its office at the address set forth below, namely:
In the case of the Trust:
SAFECO Common Stock Trust
Attn: Xxxxx X. Xxxx, President
SAFECO Plaza
Xxxxxxx, Xxxxxxxxxx 00000
and
In the case of the Bank:
U.S. Bank of Washington, N.A.
Attn: Trust Operations Department
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
or at such other place as such party may from time to time designate in writing.
22. Bank representation. The Bank represents that it does meet, and
will continue to meet at all times that this Agreement is in effect, the
requirements of the rules and regulations promulgated pursuant to Section 17(f)
of the 1940 Act.
23. Limitation of Liability. The Bank is hereby expressly put on notice
of (i) the limitation of shareholder, officer and trustee liability as set forth
in the Trust Instrument of the Trust and (ii) of the provisions in the Trust
Instrument permitting the establishment of separate Series and limiting the
liability of each Series to obligations of that Series. The Bank hereby agrees
that obligations assumed by the Trust pursuant to this Agreement are in all
cases assumed on behalf of a particular Series and each such obligation shall be
limited in all cases to that Series and its assets. The Bank agrees that it
shall not seek satisfaction of any such obligation from the shareholders or any
individual shareholder of the Trust nor from the officers or trustees or any
individual officer or trustee of the Trust.
24. Entire Agreement. This Agreement embodies the entire Agreement
between the Bank and the Trust with respect to the services to be provided by
the Bank to the Trust and each Series and supersedes any prior written or oral
agreement between those parties.
25. Miscellaneous. This Agreement shall be binding on and shall inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that this Agreement shall not be assignable by the
Trust without the written consent of the Bank or by the Bank without the
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written consent of the Trust. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in counterparts, each of which taken together shall
constitute one and the same instrument. Bank understands that the rights and
obligations of each Series under the Trust Instrument are separate and distinct
from those of any and all other Series.
26. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Washington.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
Attest: U. S. BANK OF WASHINGTON, N.A.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx Hoznagel
----------------------------- -------------------------------
Its: Assistant Vice President Its: Assistant Vice President
---------------------------- ------------------------------
Attest: SAFECO COMMON STOCK TRUST
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
--------------------------------- -------------------------------
Xxxx X. Xxxxxx Xxxxx X. Xxxx
Assistant Secretary President
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EXHIBIT A
SAFECO COMMON STOCK TRUST
The SAFECO Common Stock Trust consists of the following Series subject to this
Agreement:
1. SAFECO Equity Fund
2. SAFECO Northwest Fund
3. SAFECO Income Fund
4. SAFECO Growth Fund
5. SAFECO Balanced Fund
6. SAFECO Small Company Stock Fund
As of 11/7/95
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EXHIBIT B
SAFECO COMMON STOCK TRUST
ALL FUNDS
PROCEDURES FOR CONTROL
Securities Held by Nominee Puget & Co.
1. All securities held in safe keeping at U.S. Bank of
Washington, N.A., main office, will be in the name of the
nominee, Puget & Co.
2. Instructions from the Trust on behalf of a Series or SAFECO Asset
Management Company, the investment adviser to the Trust, relative to
the purchase and sale of securities will be in written form on a
"Transaction Advice" form.
3. All accounting documents, minutes, bank records, and instructions to
brokers will identify the real ownership of securities being bought or
sold and of interest and dividends received.
4. Certificates for shares of stock and par value of bonds will
be in lots which will permit the physical separation of the
securities according to their real ownership. U.S. Bank of
Washington, N.A. will maintain such a physical separation.
5. Proceeds on securities sold and dividends or interest received in the
name of Puget & Co. will be collected by U.S. Bank of Washington, N.A.,
main office. On the business day of receipt of such proceeds the bank
will credit the custodial account of the Trust with the total amount of
such proceeds, dividends or interest and will specifically identify all
collections on the statement of the Trust's account.
6. Payments for securities purchased will be made from the
Trust's custodial account upon delivery of the securities.
As of 11/7/95
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EXHIBIT C
SAFECO COMMON STOCK TRUST
ALL FUNDS
---------------
Schedule of Custodian Fees with U.S. Bank of Washington, N.A.
Annual Base Fee Per Fund $ 1,000
-------
Annual Holding Fee Per Security $ 75.00
-------
Security Transactions $ 20.00
-------
Incoming Wires $ 15.00
-------
Outgoing Wires $ 20.00
-------
Administration - if applicable $50.00 per hour
---------------
Out of Pocket Expenses (Postage, As Incurred
insurance, long distance calls,
mileage, photocopying)
As of 11/7/95
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