Exhibit 8.B.
CUSTODY AGREEMENT
This Custody Agreement is dated June 4, 1993 between XXXXXX XXXXXXX TRUST
COMPANY, a New York State chartered trust company (the "Custodian"), and
Columbia Common Stock Fund Inc. (the "Client").
1. The Client hereby appoints the Custodian as a custodian of securities
and other property owned or under the control of the Client which are delivered
to the Custodian, or any Subcustodian as appointed below, from time to time to
be held in custody for the benefit of the Client. The Client instructs the
Custodian to establish on the books and records of the Custodian [an] [one or
more] account[s] (the "Account[s]") in the name of the Client. The Custodian
shall record in the Account[s] and shall have general responsibility for the
safekeeping of all securities ("Securities"), cash and other property (all such
Securities, cash and other Property being collectively the "Property") of the
Client so delivered for custody. It is understood that the specific procedures
the Custodian will use in carrying out its responsibilities under this Agreement
are set forth in the procedures manual (the "Procedures Manual") prepared by the
Custodian and delivered to the Client, as such Procedures Manual may be amended
from time to time by the Custodian by written notice to the Client. The Client
acknowledges that the Procedures Manual constitutes an integral part of this
Agreement.
2. The Property may be held in custody and deposit accounts that have been
established by the Custodian with one or more domestic or foreign banks, or
through the facilities of one or more clearing agencies or central securities
depositories, as listed on Exhibit A hereto (the "Subcustodians"), as such
Exhibit may be amended from time to time by the Custodian by written notice to
the Client. The Custodian may hold Property for all of its customers with a
Subcustodian in a single account that is identified as belonging to the
Custodian for the benefit of its customers. Any Subcustodian may hold Property
in a securities depository and may utilize a clearing agency. The Client agrees
that the Property may be physically held outside the United States. The
Custodian shall not be liable for any loss resulting from the physical presence
of any Property in a foreign country including, but not limited to, losses
resulting from nationalization, expropriation, exchange controls or acts of war
or terrorism. Except as provided in the previous sentence, the liability of the
Custodian for losses incurred by the Client in respect of Securities shall not
be affected by the Custodian's use of Subcustodians.
3. With respect to Property held by a Subcustodian pursuant to Section 2:
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(a) The Custodian will identify on its books as belonging to the Client
any Property held by a Subcustodian for the Custodian's account;
(b) The Custodian will hold Property through a Subcustodian only if (i)
such Subcustodian and any securities depository or clearing agency in which
such Subcustodian holds Property, or any of their creditors, may not assert
any right, charge, security interest, lien, encumbrance or other claim of
any kind to such Property except a claim of payment for its safe custody or
administration and (ii) beneficial ownership of such Property may be freely
transferred without the payment of money or value other than for safe
custody or administration;
(c) The Custodian shall require that Property held by the Subcustodian for
the Custodian's account be identified on the Subcustodian's books as
separate from any property held by the Subcustodian other than property of
the Custodian's customers and as held solely for the benefit of customers
of the Custodian; and
(d) In the event that the Subcustodian holds Property in a securities
depository or clearing agency, such Subcustodian will be required by its
agreement with the Custodian to identify on its books such Property as
being held for the account of the Custodian as a custodian for its
customers.
4. The Custodian shall allow the Client's accountants reasonable access to
the Custodian's records relating to the Property held by the Custodian as such
accountants may reasonably require in connection with their examination of the
Client's affairs. The Custodian shall also obtain from any Subcustodian (and
will require each Subcustodian to use reasonable efforts to obtain from any
securities depository or clearing agency in which it deposits Property) an
undertaking, to the extent consistent with local practice and the laws of the
jurisdiction or jurisdictions to which such Subcustodian, securities depository
or clearing agency is subject, to permit independent public accountants such
reasonable access to the records of such Subcustodian, securities depository or
clearing agency as may be reasonably required in connection with the examination
of the Client's affairs or to take such other action as the Custodian in its
judgment may deem sufficient to ensure such reasonable access.
5. The Custodian shall provide such reports and other information to the
Client and to such persons as the Client directs as the Custodian and the Client
may agree from time to time.
6. The Custodian shall make or cause any Subcustodian to make payments
from monies being held in the Account[s] only:
(a) upon the purchase of Securities and then, to the extent consistent
with practice in the jurisdiction in which settlement occurs, upon the
delivery of such Securities;
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(b) for payments to be made in connection with the conversion, exchange or
surrender of Securities;
(c) upon a request of the Client that the Custodian return monies being
held in the Account[s];
(d) upon a request of the Client that monies be exchanged for or used to
purchase monies denominated in a different currency and then only upon
receipt of such exchanged or purchased monies;
(e) as provided in Section 8 and 12 hereof;
(f) upon termination of this Custody Agreement as hereinafter set forth;
and
(g) for any other purpose upon receipt of instructions of the Client.
Except as provided in the last two sentences of this Section 6 and as
provided in Section 8, all payments pursuant to this Section 6 will be made only
upon receipt by the Custodian of Authorized Instructions (as hereinafter
defined) from the Client which shall specify the purpose for which the payment
is to be made. In the event that it is not possible to make a payment in
accordance with Authorized Instructions of the Client, the Custodian shall
proceed in accordance with the procedures set forth in the Procedures Manual.
Any payment pursuant to subsection (f) of this Section 6 will be made in
accordance with Section 16.
7. The Custodian shall make or cause any Subcustodian to make transfers,
exchanges or deliveries of Securities only:
(a) upon sale of such Securities and then, to the extent consistent with
practice in the jurisdiction in which settlement occurs, upon receipt of
payment therefor;
(b) upon exercise of conversion, subscription, purchase, exchange or other
similar rights pertaining to such Securities and, if applicable to such
exercise and if consistent with practice in the applicable jurisdiction,
only on receipt of substitute or additional securities to be received upon
such exercise;
(c) as provided in Section 8 hereof;
(d) upon the termination of this Custody Agreement as hereinafter set
forth; and
(e) for any other purpose upon receipt of instructions of the Client.
Except as provided in the last two sentences of this Section 7 and as
provided in Section 8, all transfers, exchanges or deliveries of Securities
pursuant to this Section 7 will be made only upon receipt by the Custodian of
Authorized Instructions of the Client which shall specify the purpose for which
the transfer, exchange or delivery is to be made. In the event that it is not
possible to transfer Securities in accordance with Authorized Instructions of
the Client, the Custodian shall proceed in accordance with the procedures set
forth in the
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Procedures Manual. Any transfer or delivery pursuant to subsection (d) of this
Section 7 will be made in accordance with Section 16.
8. In the absence of Authorized Instructions from the Client to the
contrary, the Custodian may, and may authorize any Subcustodian to:
(a) make payments to itself or others for expenses of handling Property or
other similar items relating to its duties under this Agreement, provided
that all such payments shall be accounted for to the Client;
(b) receive and collect all income and principal with respect to Securities
and to credit cash receipts to the Account[s];
(c) exchange Securities when the exchange is purely ministerial
(including, without limitation, the exchange of interim receipts or
temporary securities for securities in definitive form and the exchange of
warrants, or other documents of entitlement to securities, for the
securities themselves);
(d) surrender Securities at maturity or when called for redemption upon
receiving payment therefor;
(e) execute in the Client's name such ownership and other certificates as
may be required to obtain the payment of income from Securities;
(f) pay or cause to be paid, from the Account[s], any and all taxes and
levies in the nature of taxes imposed on Property by any governmental
authority in connection with custody of and transactions in such Property;
(g) endorse for collection, in the name of the Client, checks, drafts and
other negotiable instruments; and
(h) in general, attend to all non-discretionary details in connection with
the custody, sale, purchase, transfer and other dealings with the Property.
9. "Authorized Instructions" of the Client shall mean instructions
received by telecopy, tested telex, electronic link or other electronic means or
by such other means as may be agreed in writing in advance between the Client
and the Custodian. The Custodian shall be entitled to act, and shall have no
liability for acting, in accordance with the terms of this Agreement or upon any
instructions, notice, request, consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly executed by or on behalf
of the Client.
10. Securities which must be held in registered form may be registered in
the name of the Custodian's nominee or, in the case of Securities in the custody
of an entity other than the Custodian, in the name of such entity's nominee.
The Client agrees to hold the Custodian and Subcustodians and any such nominee
harmless from any liability arising out of any such person acting as a holder of
record of such Securities. The Custodian may without notice to
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the Client cause any Securities to cease to be registered in the name of any
such nominee and to be registered in the name of the Client.
11. All cash received by the Custodian for the Account[s] shall be held by
the Custodian as a short-term credit balance in favor of the Client and, if the
Custodian and the Client have agreed in writing in advance that such credit
balances shall bear interest, the Client shall earn interest at the rates and
times as agreed between the Custodian and the Client. The Client understands
that any such credit balances will not be accompanied by the benefit of any
governmental insurance.
12. From time to time, the Custodian may arrange or extend short-term
credit for the Client which is (i) necessary in connection with payment and
clearance of securities and foreign exchange transactions or (ii) pursuant to an
agreed schedule, as and if set forth in the Procedures Manual, of credits for
dividends and interest payments on Securities. All such extensions of credit
shall be repayable by the Client on demand. The Custodian shall be entitled to
charge the Client interest for any such credit extension at rates to be agreed
upon from time to time. In addition to any other remedies available, the
Custodian shall be entitled to a right of set-off against the Property to
satisfy the repayment of such credit extensions and the payment of accrued
interest thereon. The Custodian's may act as the Client's agent or act as a
principal in foreign exchange transactions at such rates as are agreed from time
to time between the Client and the Custodian.
13. The Client represents that (i) the execution, delivery and performance
of this Agreement (including, without limitation, the ability to obtain the
short-term extensions of credit in accordance with Section 12) are within the
Client's power and authority and have been duly authorized by all requisite
action (corporate or otherwise) and (ii) this Agreement and each extension of
short-term credit extended or arranged for the benefit of the Client in
accordance with Section 12 will at all times constitute a legal, valid and
binding obligation of the Client and be enforceable against the Client in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
in general and subject to the effect of general principles of equity (regardless
of whether considered in a proceeding in equity or at law).
The Custodian represents that the execution, delivery and performance of
this Agreement is within the Custodian's power and authority and has been duly
authorized by all requisite action of the Custodian. This Agreement constitutes
the legal, valid and binding obligation of the Custodian enforceable against the
Custodian in accordance with its terms, except as may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
in general and subject to the effect of general principles of equity (regardless
of whether considered in a proceeding in equity or at law).
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14. The Custodian shall be responsible for the performance of only such
duties as are set forth in this Agreement or the Procedures Manual or contained
in Authorized Instructions given to the Custodian which are not contrary to the
provisions of any relevant law or regulation. The Custodian shall not be liable
to the Client or to any other person for any action taken or omitted to be taken
by it in connection with this Agreement in the absence of negligence or willful
misconduct on the part of the Custodian. Upon the request of the Custodian, the
Client agrees to deliver to the Custodian a duly executed power of attorney, in
form and substance satisfactory to the Custodian, authorizing the Custodian to
take any action or execute any instrument on behalf of the Client as necessary
or advisable to accomplish the purposes of this Agreement.
15. The Client agrees to pay to the Custodian from time to time such
compensation for its services pursuant to this Agreement as may be mutually
agreed upon from time to time and the Custodian's out-of-pocket or incidental
expenses. The Client hereby agrees to hold the Custodian harmless from any
liability or loss resulting from any taxes or other governmental charges, and
any expenses related thereto, which may be imposed or assessed with respect to
the Account[s] or any Property held therein. The Custodian is and any
Subcustodians are authorized to charge the Account[s] for such items and the
Custodian shall have a lien, charge and security interest on any and all
Property for any amount owing to the Custodian from time to time under this
Agreement.
If the Client is a U.S. person as defined in Rule 902 promulgated by the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), the Client recognizes that, in connection with the Client's
election from time to time to participate in distributions of securities
(whether pursuant to rights offerings, warrant subscriptions, mergers,
reorganizations or otherwise) which have not been registered pursuant to the
Act, the Custodian may inform the issuer and its agents that the acquiror of the
securities is a U.S. person. The Custodian shall not be responsible to the
Client for the consequences of any issuer's or agent's refusal to permit the
Client to acquire such securities, and the Client shall hold the Custodian
harmless from liability to the issuer and its agents in connection with any such
election by the Client.
16. This Agreement may be terminated by the Client or the Custodian by [ ]
days written notice to the other, sent by registered mail. If notice of
termination is given, the Client shall, within [ ] days following the giving of
such notice, deliver to the Custodian a statement in writing specifying the
successor custodian or other person to whom the Custodian shall transfer the
Property. In either event the Custodian, subject to the satisfaction of any
lien it may have, will transfer the Property to the person so specified. If the
Custodian does not receive such statement the Custodian, at its election, may
transfer the
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Property to a bank or trust company established under the laws of the United
States or any state thereof to be held and disposed of pursuant to the
provisions of this Agreement or may continue to hold the Property until such a
statement is delivered to the Custodian. In such event the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian remains in possession of any Property and the provisions of this
Agreement relating to the duties and obligations of the Custodian shall remain
in full force and effect; provided, however, that the Custodian shall no longer
settle any transactions in securities for the Account[s].
17. The Custodian, its agents and employees will maintain the
confidentiality of information concerning the Property held in the Client's
account, including in dealings with affiliates of the Custodian. In the event
the Custodian or any Subcustodian is requested or required to disclose any
confidential information concerning the Property, the Custodian shall to the
extent practicable and legally permissible, promptly notify the Client of such
request or requirement so that the Client may seek a protective order or waive
the Custodian's or such Subcustodian's compliance with this Section 17. In the
absence of such a waiver, if the Custodian or such Subcustodian is compelled, in
the opinion of its counsel, to disclose any confidential information, the
Custodian or such Subcustodian may disclose such information to such persons as,
in the opinion of counsel, is so required.
18. Any notice or other communication from the Client to the Custodian,
unless otherwise provided by this Agreement, shall be sent by certified or
registered mail to Xxxxxx Xxxxxxx Trust Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxx, 00000, Attention: President, and any notice from the Custodian to the
Client is to be mailed postage prepaid, addressed to the Client at the address
appearing below, or as it may hereafter be changed on the Custodian's records in
accordance with notice from the Client.
19. The Custodian may assign all of its rights and obligations hereunder
to any other entity which is qualified to act as custodian under the terms of
this Agreement and majority-owned, directly or indirectly, by Xxxxxx Xxxxxxx
Group Inc., and upon the assumption of the rights and obligations hereunder by
such entity, such entity shall succeed to all of the rights and obligations of,
and be substituted for, the Custodian hereunder as if such entity had been
originally named as custodian herein. The Custodian shall give prompt written
notice to the Client upon the effectiveness of any such assignment.
This Agreement shall bind the successors and assigns of the Client and the
Custodian and shall be governed by the laws of the State of New York applicable
to contracts executed in and to be performed in that state.
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By XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for record: 0000 XX 0XX XXXXXX
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P.O. BOX 1350
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XXXXXXXX, XXXXXX 00000
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Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By XXXXX XXXXXXX
--------------------------------
Authorized Signature
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Appendix A
CURRENT FEE SCHEDULE FOR COLUMBIA COMMON STOCK FUND, INC.
This letter describes Xxxxxx Xxxxxxx Trust Company's ("Xxxxxx Xxxxxxx")
compensation under this revised fee schedule dated June 7, 1993 with Columbia
Common Stock Fund, Inc.
Xxxxxx Xxxxxxx'x compensation shall be as follows:
Transaction Custody Rate
County/Product Rate (Basis Points)
-------------- ----------- --------------
Australia $75 14
Austria $50 11
Belgium $50 11
Canada $75 8
Denmark $35 14
Finland $35 20
France $75 15
Germany $35 8
Hong Kong $75 15
Ireland $80 12
Italy $80 12
Japan $30 6
Malaysia $100 15
Mexico $125 30
Netherlands $50 12
New Zealand $75 15
Norway $35 10
Singapore $80 00
Xxxxx Xxxxxx $75 9
Spain $80 21
Sweden $50 11
Switzerland $35 12
United Kingdom $50 00
Xxxxxx Xxxxxx $35 4
Eurobonds $35 6
Euro CDs $120 per CD/month
Transactions are defined in the Xxxxxx Xxxxxxx Trust Company Billing Guide, as
is the method of calculating custody.
All new business will be separately negotiated. You are requested to contact
your client executive if you are trading in new countries or in new products.
If your client executive is not notified ahead of time, you will charged at the
MSTC generic rates for each respective new country / new product.
In-Kind transactions will not be charged.
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Appendix A
COLUMBIA COMMON STOCK FUND, INC.
Cash movements will not be charged.
Registration/transfer fees will be charged where incurred by Xxxxxx Xxxxxxx.
Stamp taxes/duties will be charged where incurred by Xxxxxx Xxxxxxx.
All fees are calculated and billed monthly in arrears.
The fees are due for renegotiation two years from the date of the Agreement, and
they will remain effective until renegotiation is complete.
MSTC agrees to limit the transaction fees charged to Columbia Common Stock Fund,
Inc. (the Fund) to 100 per month for the first three months following the launch
date of the Fund. Beyond the third month MSTC will resume charging for all
transactions as described in your Billing Guide.
For further assistance, please contact Xxx Xxxxxxx, your client executive, at
(000) 000-0000, or Xxxxx Xxxxxx, your billing representative, at (000) 000-0000.
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