EXHIBIT 8
CUSTODY AGREEMENT
-----------------
This Custody Agreement is dated as of September 11, 1996 between
XXXXXX XXXXXXX TRUST COMPANY, a New York State chartered trust company (the
"Custodian"), and DRIEHAUS MUTUAL FUNDS, a Delaware business trust (the
"Client").
1. Appointment and Acceptance; Accounts. (a) The Client hereby
appoints the Custodian as a custodian of Property (as defined below) owned or
under the control of the Client that 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.
(b) Prior to the delivery of any Property by the Client to the
Custodian, the Client shall deliver to the Custodian each document and other
item listed in Appendix 1. In addition, the Client shall deliver to the
Custodian any additional documents or items as the Custodian may deem necessary
for the performance of its duties under this Agreement.
(c) The Client instructs the Custodian to establish on the books and
records of the Custodian the accounts listed in Appendix 2 (the "Accounts") in
the name of the Client. Upon receipt of Authorized Instructions (as defined
below) and appropriate documentation, the Custodian shall open additional
Accounts for the Client. Upon the Custodian's confirmation to the Client of the
opening of such additional Accounts, or of the closing of Accounts, Appendix 2
shall be deemed automatically amended or supplemented accordingly. The Custodian
shall record in the Accounts and shall have responsibility for the safekeeping
of all securities ("Securities"), cash, cash equivalents and other property (all
such Securities, cash, cash equivalents and other property being collectively
the "Property") of the Client that are delivered to the Custodian for custody.
(d) The procedures the Custodian and the Client will use in
performing activities in connection with this Agreement are set forth in a
client services guide provided to the Client by the Custodian, as such guide may
be amended from time to time by the Custodian by written notice to the Client
(the "Client Services Guide").
2. Subcustodians. 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 other institutions that are "Eligible Foreign Custodians"
(as such term is defined in Rule 17f-5 of the Investment Company Act of 1940)
as listed on Exhibit A (the "Subcustodians"), as such Exhibit may be amended
from time to time by the Custodian by ninety (90) days prior written notice to
the Client, or through the facilities of one or more securities depositories or
clearing agencies. The Custodian shall hold Property through a Subcustodian,
securities depository or clearing agency only if (a) such Subcustodian and any
securities depository or clearing agency in which such Subcustodian or the
Custodian 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
(b) beneficial ownership of such Property may be freely transferred without the
payment of money or value other than for safe custody or administration. Any
Subcustodian may hold Property in a securities depository and may utilize a
clearing agency.
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3. Records. With respect to Property held by a Subcustodian:
(a) The Custodian may hold Property for all of its customers with a
Subcustodian in a single account identified as belonging to the Custodian
for the benefit of its customers;
(b) The Custodian shall identify on its books as belonging to the
Client any Property held by a Subcustodian for the Custodian's account;
(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 other property held by the
Subcustodian other than property of the Custodian's customers held solely
for the benefit of customers of the Custodian; and
(d) In the event the Subcustodian holds Property in a securities
depository or clearing agency, such Subcustodian shall 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 custodian for its customers
or in such other manner as is required by local law or market practice.
4. Access to Records. 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 shall 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. Reports. 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. Payment of Monies. The Custodian shall make, or cause any
Subcustodian to make, payments from monies being held in the Accounts only in
accordance with Authorized Instructions or as provided in Sections 9, 13 and 17.
The Custodian 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.
7. Transfer of Securities. The Custodian shall make, or cause any
Subcustodian to make, transfers, exchanges or deliveries of Securities only in
accordance with Authorized Instructions or as provided in Sections 9, 13 and 17.
8. Corporate Action. (a) The Custodian shall notify the Client of
details of all corporate actions affecting the Client's Securities promptly upon
its receipt of such information.
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(b) The Custodian shall take, or cause any Subcustodian to take, such
corporate action only in accordance with Authorized Instructions or as provided
in this Section 8 or Section 9.
(c) In the event the Client does not provide timely Authorized
Instructions to the Custodian, the Custodian shall act in accordance with the
default option provided by local market practice and/or the issuer of the
Securities.
(d) Fractional shares resulting from corporate action activity shall
be treated in accordance with local market practices.
9. General Authority. In the absence of Authorized Instructions 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 Accounts;
(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 Accounts, 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;
(h) take non-discretionary action on mandatory corporate actions; and
(i) in general, attend to all nondiscretionary details in connection
with the custody, sale, purchase, transfer and other dealings with the
Property.
10. Authorized Instructions; Authorized Persons. (a) Except as
otherwise provided in Sections 6 through 9, 13 and 17, all payments of monies,
all transfers, exchanges or deliveries of Property and all responses to
corporate actions shall be made or taken only upon receipt by the Custodian of
Authorized Instructions; provided that such Authorized Instructions are timely
received by the
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Custodian. "Authorized Instructions" of the Client means instructions from an
Authorized Person received by telecopy, tested telex, electronic link or other
electronic means or by such other means as may be agreed in writing between the
Client and the Custodian.
(b) "Authorized Person" means each of the persons or entities
identified on Appendix 3 as amended from time to time by written notice from the
Client to the Custodian. The Client represents and warrants to the Custodian
that each Authorized Person listed in Appendix 3, as amended from time to time,
is authorized to issue Authorized Instructions on behalf of the Client. Prior to
the delivery of the Property to the Custodian, the Custodian shall provide a
list of designated system user ID numbers and passwords that the Client shall be
responsible for assigning to Authorized Persons. The Custodian shall assume that
an electronic transmission received and identified by a system user ID number
and password was sent by an Authorized Person. The Custodian agrees to provide
additional designated system user ID numbers and passwords as needed by the
Client. The Client authorizes the Custodian to issue new system user ID numbers
upon the written request of a previously existing Authorized Person identified
as having such authority on Appendix 3 hereto. Upon the issuance of additional
system user ID numbers by the Custodian to the Client, Appendix 3 shall be
deemed automatically amended accordingly. The Client authorizes the Custodian to
receive, act and rely upon any Authorized Instructions received by the Custodian
which have been issued, or purport to have been issued, by an Authorized Person.
(c) Any Authorized Person may cancel/correct or otherwise amend any
Authorized Instruction received by the Custodian, but the Client agrees to
indemnify the Custodian for any liability, loss or expense incurred by the
Custodian and its Subcustodians as a result of their having relied upon or acted
on any prior Authorized Instruction. An amendment or cancellation of an
Authorized Instruction to deliver or receive any security or funds in connection
with a trade will not be processed once the trade has settled.
11. Registration of Securities. (a) In the absence of Authorized
Instructions to the contrary, Securities which must be held in registered form
shall be registered in the name of the Custodian or the Custodian's nominee or,
in the case of Securities in the custody of an entity other than the Custodian,
in the name of the Custodian, its Subcustodian or any such entity's nominee. The
Custodian may, without notice to the Client, cause any Securities to be
registered or re-registered in the name of the Client.
(b) Where the Custodian has been instructed by the Client to hold any
Securities in the name of any person or entity other than the Custodian, its
Subcustodian or any such entity's nominee, the Custodian shall not be
responsible for any failure to collect such dividends or other income or
participate in any such corporate action with respect to such Securities.
12. Deposit Accounts. All cash received by the Custodian for the
Accounts 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 acknowledges that any such credit balances shall not be accompanied
by the benefit of any governmental insurance.
13. Short-term Credit Extensions. (a) From time to time, the
Custodian may extend or arrange 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
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in the Client Services Guide, of credits for dividends and interest payments on
Securities. All such extensions of credit shall be repayable by the Client on
demand.
(b) The Custodian shall be entitled to charge the Client interest for
any such credit extension at rates to be agreed upon time to time or, if such
credit is arranged by the Custodian with a third party on behalf of the Client,
the Client shall reimburse the Custodian for any interest charge. 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, or reimbursement for, accrued interest thereon.
14. Representations and Warranties. (a) The Client represents and
warrants 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 13) are within the Client's power and
authority and have been duly authorized by all requisite action (corporate or
otherwise) of the Client and of the beneficial owner of the Property, if other
than the Client, and (ii) this Agreement and each extension of short-term
credit extended to or arranged for the benefit of the Client in accordance with
Section 13 shall at all times constitute a legal, valid and binding obligation
of the Client 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).
(b) The Custodian represents and warrants that (i) the execution,
delivery and performance of this Agreement are within the Custodian's power and
authority and have been duly authorized by all requisite action (corporate or
otherwise) of the Custodian and (ii) 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).
15. Standard of Care; Indemnification. (a) The Custodian shall be
responsible for the performance of only such duties as are set forth in this
Agreement 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 be liable to the Client for any loss, liability or expense
incurred by the Client in connection with this Agreement to the extent that any
such loss, liability or expense results from the negligence or willful
misconduct of the Custodian or any Subcustodian; provided, however that neither
the Custodian nor any Subcustodian shall be liable to the Client for any
indirect, special or consequential damages.
(b) The Client acknowledges that the Property may be physically held
outside the United States. The Custodian shall not be liable for any loss,
liability or expense resulting from events beyond the reasonable control of the
Custodian, including, but not limited to, force majeure.
(c) In addition, the Client shall indemnify the Custodian and
Subcustodians and any nominee for, and hold each of them harmless from, any
liability, loss or expense (including attorneys' fees and disbursements)
incurred in connection with this Agreement, including without limitation, (i) as
a
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result of the Custodian having acted or relied upon any Authorized Instructions
or (ii) arising out of any such person acting as a nominee or holder of record
of Securities.
16. Fees; Liens. The Client shall pay to the Custodian from time to time
such compensation for its services pursuant to this Agreement as may be mutually
agreed upon as well as the Custodian's out-of-pocket and incidental expenses.
The Client shall 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 Accounts or any
Property held therein. The Custodian is, and any Subcustodians are, authorized
to charge the Accounts 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.
17. Termination. This Agreement may be terminated by the Client or the
Custodian by 60 days written notice to the other, sent by registered mail. If
notice of termination is given, the Client shall, within 30 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, shall transfer the Property to the person
so specified. If the Custodian does not receive such statement the Custodian, at
its election, may transfer the 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
have no obligation to settle any transactions in Securities for the Accounts.
The provisions of Sections 15 and 16 shall survive termination of this
Agreement.
18. Investment Advice. The Custodian shall not supervise, recommend or
advise the Client relative to the investment, purchase, sale, retention or other
disposition of any Property held under this Agreement.
19. Confidentiality. (a) The Custodian, its agents and employees shall
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
any objection to the Custodian's or such Subcustodian's compliance with this
Section 19. 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.
(b) The Client shall maintain the confidentiality of, and not provide to
any third parties absent the written permission of the Custodian, any computer
software, hardware or communications facilities made available to the Client or
its agents by the Custodian.
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20. Notices. Any notice or other communication from the Client to the
Custodian, unless otherwise provided by this Agreement or the Client Services
Guide, 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 written notice from the
Client.
21. Assignment. This contract may not be assigned by either party without
the prior written approval of the other.
22. Miscellaneous. (a) This Agreement shall bind the successors and
assigns of the Client and the Custodian.
(b) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without regard to its conflicts of
law rules and to the extent not preempted by federal law. The Custodian and the
Client hereby irrevocably submit to the exclusive jurisdiction of any New York
State court or any United States District Court located in the State of New York
in any action or proceeding arising out of this Agreement and hereby irrevocably
waive any objection to the venue of any such action or proceeding brought in any
such court or any defense of an inconvenient forum.
In witness whereof, the parties hereto have set their hands as of the date
first above written.
DRIEHAUS MUTUAL FUNDS
By /s/ Xxxxxx X. Xxxxx
--------------------
Name: XXXXXX X. XXXXX
Title: TRUSTEE
Address for record: 00 X. XXXX XX.
-----------------
XXXXXXX, XX 00000
-----------------
-----------------
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By /s/ Xxxxxxxxx X. Xxxxx, Xx.
----------------------------
Authorized Signature
Xxxxxxxxx X. Xxxxx, Xx.
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Appendix 1
ACCOUNT DOCUMENTATION
REQUIRED DOCUMENTATION FOR CORE CUSTODIAL SERVICES:
---------------------------------------------------
Custody Agreement
Secretary's Certificate
Client Service Guide (including appendices)
Fee Schedule/Billing Guide
Certificate of Beneficial Ownership
Form W-9 (U.S. Residents)
Form 8821 or 6166 (U.S. Residents)
Form W-8 (Non-U.S. Residents)
Form 1001 (Non-U.S. Residents)
Local Tax Office Letter (Non-U.S. Residents)
Client Service Requirement Letter
Voting Power of Attorney
Sophisticated Investor Letter
General Account Information
JGB Indemnification Letter (optional)
Thai Authorization Letter (optional)
New Zealand 'Approved Issuer Levy' Letter (optional)
ADDITIONAL DOCUMENTATION REQUIRED FOR TAX RECLAIM SERVICES:
-----------------------------------------------------------
Tax Reclaim Power of Attorney
U.K. Tax Authority Letter (Non U.K. individuals only)
(Only for tax exempt clients)
---------------------------
IRS Determination Letter (U.S. residents only)
U.K. Form 309A (U.S. residents only)
U.K. Form 4338 (Non U.K. funds)
U.K. Form 4338A (Non U.K. charities/foundations)
Previous Exemption Letters (Non U.S. residents)
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Appendix 2
CLIENT ACCOUNTS
Account Name Account Number Account Mnemonic
------------ -------------- ----------------
1. Driehaus International Growth Fund XXX XXX
2.
3.
4.
5.
6.
7.
8.
9.
10.
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Appendix 3
Part I - Authorized Signatures
The Custodian is directed to accept and act upon Authorized Instructions
received from any of the following persons or entities:
Telephone/ Authorized
Name Organization Title Fax Signature
---- ------------ ----- ---------- ----------
Authorized by:
---------------------------
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Part II - System User ID Numbers
The Custodian is directed to accept and act upon Authorized Instructions
transmitted electronically and identified with the following mnemonics and
system user ID numbers for the following activities:
Work Station Account Workstation Sessions
User I.D. Mnemonic Number TE TCC SL FE CM MA TD
--------- -------- ------ -- --- -- -- -- -- --
Workstation Session Codes
-------------------------
TE Trade Entry
TCC Trade Cancel/Correct
SL Securities Lending
FE Foreign Exchange
CM Cash Movement
MA Mass Authorization
TD Time Deposit
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EXHIBIT A
Subcustodians
==============================================================================================================================
COUNTRY AGENT BANK COUNTRY AGENT BANK
==============================================================================================================================
Argentina Citibank N.A. Mauritius Hongkong & Shanghai Banking Corp.
------------------------------------------------------------------------------------------------------------------------------
Australia Westpac Banking Corporation Mexico Citibank Mexico S.A
------------------------------------------------------------------------------------------------------------------------------
Austria Creditanstalt Bankverein Morocco Banque Commerciale du Maroc
------------------------------------------------------------------------------------------------------------------------------
Bangladesh Standard Chartered Bank Netherlands ABN - Amro Bank N.V.
------------------------------------------------------------------------------------------------------------------------------
Belgium Banque Bruxelles Xxxxxxx X.X. New Zealand Australia and New Zealand Banking
Group (New Zealand) Ltd
------------------------------------------------------------------------------------------------------------------------------
Botswana Barclays Bank of Botswana Norway Den Norske Bank
------------------------------------------------------------------------------------------------------------------------------
Brazil Banco de Boston Pakistan Standard Chartered Bank
------------------------------------------------------------------------------------------------------------------------------
Canada The Toronto Dominion Bank Papua New Guinea Westpac Banking Corporation
------------------------------------------------------------------------------------------------------------------------------
Chile Citibank N.A. Peru Citibank, N.A.
------------------------------------------------------------------------------------------------------------------------------
China Hongkong & Shanghai Banking Corp. Philippines Hongkong & Shanghai Banking Corp.
Ltd. Ltd.
------------------------------------------------------------------------------------------------------------------------------
Colombia Cititrust S.A. Poland Citibank (Poland) S.A.
------------------------------------------------------------------------------------------------------------------------------
Cyprus Barclays Bank PLC Portugal Banco Comercial Portugues
------------------------------------------------------------------------------------------------------------------------------
Czech Republic ING Bank (Prague) Russia Credit Suisse (with Credit Suisse
(Moscow) Ltd)
------------------------------------------------------------------------------------------------------------------------------
Denmark Den Danske Bank Singapore Oversea-Chinese Banking Corp. Ltd.
------------------------------------------------------------------------------------------------------------------------------
Ecuador Citibank, N.A. Slovak Republic ING Bank
------------------------------------------------------------------------------------------------------------------------------
Egypt Citibank, N.A. South Africa First Natl. Bank of Southern Africa Ltd.
------------------------------------------------------------------------------------------------------------------------------
Finland Xxxxxx Bank South Korea Standard Chartered Bank
------------------------------------------------------------------------------------------------------------------------------
France Banque Indosuez Spain Banco Santander
------------------------------------------------------------------------------------------------------------------------------
Germany Dresdner Bank AG Sri Lanka Hongkong & Shanghai Banking Corp.
Ltd.
------------------------------------------------------------------------------------------------------------------------------
Ghana Barclays Bank of Ghana Ltd. Swaziland Barclays Bank of Swaziland Ltd
------------------------------------------------------------------------------------------------------------------------------
Greece Citibank, N.A. Sweden Svenska Handelsbanken
------------------------------------------------------------------------------------------------------------------------------
Hong Kong Hongkong & Shanghai Banking Corp. Switzerland Bank Leu
Ltd.
------------------------------------------------------------------------------------------------------------------------------
Hungary Citibank Budapest Taiwan Hongkong & Shanghai Banking Corp.
------------------------------------------------------------------------------------------------------------------------------
India Xxxxxx Xxxxxxx Trust Company Thailand Standard Chartered Bank
(Bombay)
------------------------------------------------------------------------------------------------------------------------------
Indonesia Hongkong & Shanghai Banking Corp. **Tunisia** Banque Internationale Arabe de Tunisie
Ltd.
------------------------------------------------------------------------------------------------------------------------------
Ireland Allied Irish Bank Turkey Citibank, N.A.
------------------------------------------------------------------------------------------------------------------------------
Israel Bank Leumi United Kingdom Barclays Bank PLC
------------------------------------------------------------------------------------------------------------------------------
Italy Barclays Bank plc United States Depository Trust Company
Chase Manhattan Bank
------------------------------------------------------------------------------------------------------------------------------
Japan The Bank of Tokyo-Mitsubishi Ltd Uruguay Citibank, N.A.
------------------------------------------------------------------------------------------------------------------------------
Jordan Arab Bank plc. Venezuela Citibank, N.A.
------------------------------------------------------------------------------------------------------------------------------
Kenya Barclays Bank of Kenya Ltd Zambia Barclays Bank of Zambia Ltd
------------------------------------------------------------------------------------------------------------------------------
Luxembourg Banque Bruxelles Xxxxxxx X.X. Zimbabwe Barclays Bank of Zimbabwe Ltd.
------------------------------------------------------------------------------------------------------------------------------
Malaysia OCBC Bank (Malyasia) Berhad.
==============================================================================================================================
**Not an "eligible foreign custodian" as such term is defined in Rule 17f-5 of
the Investment Company Act of 1940
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