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EX-99.B 8(c)
FORM OF
CUSTODY AGREEMENT
This Agreement is made as of the ___ day of December, 1995 (the "Agreement"),
by and between STAGECOACH INC. (the "Company"), on behalf of the [name of fund]
(hereinafter called the "Fund"), and [name of entity], a special purpose trust
company (hereinafter called the "Custodian").
WITNESSETH:
that for and in consideration of the mutual promises hereinafter set forth the
Company and the Custodian agree as follows:
1. Definitions
The word "securities" as used herein include stocks, shares, bonds,
debentures, notes, mortgages, or other obligations and any certificates,
receipts, warrants, options or other instruments representing rights to
receive, purchase, or subscribe for the same or evidencing or
representing any other rights or interests therein, or in any property or
assets.
The words "officers' certificate" shall mean a certification in writing
signed in the name of the Company by those persons who are officers of
the Company who are duly authorized to sign by the Board of Directors of
the Company (the "Board of Directors").
The word "depository" shall mean The Depository Trust Company ("DTC"),
Participants Trust Company ("PTC"), and any other clearing agency
registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934, its successor(s) and its
nominee(s), provided the Custodian has received a certified copy of a
resolution of the Board of Directors specifically approving deposits in
DTC, PTC or such other clearing agency. The Term "Depository" shall
further mean and include any person authorized to act as a depository
pursuant to Section 17, Rule 17f-4 or Rule 17f-5 thereunder, under the
Investment Company Act of 1940, its successor(s) and its nominee(s),
specifically identified in a certified copy of a resolution of the Board
of Directors specifically approving deposits therein by the Custodian.
2. Names, Titles and Signatures of Fund's Officers
An officer of the Company will certify to Custodian the names and
signatures of those persons authorized to sign the officers' certificates
described in Section 1 hereof, and the names of the members of the Board
of Directors, together with any charges which may occur from time to
time.
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3. Appointment and Authority of Custodian: Accounts, Receipt and
Disbursement of Money
A. The Company hereby appoints Custodian as custodian of all
securities and moneys at any time owned by the Fund during
the term of this Agreement. Custodian hereby accepts
appointment as such custodian and agrees to perform the
duties thereof as hereinafter set forth.
B. Custodian shall open and maintain a separate account or
accounts in the name of the Fund. Custodian shall hold in
such account or accounts, subject to the provisions hereof,
all cash received by it from or for the account of the
Fund. Custodian shall make payments of cash to, or for the
account of, the Fund from such cash only (a) for the
purchase of securities for the portfolio of the Fund upon
the delivery of such securities to Custodian, registered in
the name of the Fund or in the name of the nominee of
Custodian referred to in Section 7 hereof or in the proper
form for transfer, (b) for the purchase or redemption of
shares of beneficial ownership of the Fund, (c) for the
payment of interest, dividends, taxes, Director's fees or
operating expenses (including, without limitation, fees for
legal, accounting and auditing services and expense for
printing and postage), (d) for payments in connection with
the conversion, exchange or surrender of securities owned
or subscribed to by the Fund held by or to be delivered to
Custodian, or (e) for other purposes certified by
resolution of the Company's Board of Directors. Before
making any such payment Custodian shall receive
instructions from the Fund requesting such payment.
C. Custodian is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money
received by Custodian for the account of the Fund.
D. Subject to the requirements of the Investment Company Act
of 1940 and subject to the approval of the Company's Board
of Directors, the Custodian shall have the authority to
keep and maintain the Fund's securities with certain
sub-custodians, including, but not limited to, Bankers
Trust Company, the Federal Reserve Book-Entry System DTC,
PTC and other depositories as defined above.
4. Receipt of Securities
Custodian shall hold in a separate account, pursuant to the
provisions hereof, all securities received by it from or for the account of the
Fund. All such securities are to be held or disposed of by Custodian for, and
subject at all times to the instructions of, the Company pursuant to the terms
of this Agreement. Custodian shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any such securities and
investments, except pursuant to the direction of the Company and only for the
account of such Fund as set forth in Section 5 of this Agreement.
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5. Transfer, Exchange, Redelivery, etc. of Securities
Custodian shall have power to release or deliver any securities of
the Fund held by it pursuant to this Agreement on the direction of the Company.
Custodian agrees to transfer, exchange or deliver securities held by it
hereunder only (a) for sales of such securities for the account of such Fund
upon receipt by Custodian of payment therefor, (b) when such securities are
called, redeemed or retired or otherwise become payable, (c) for examination by
a broker selling any such securities in accordance with "street delivery"
custom, (d) in exchange for, or upon conversion into, other securities alone or
other securities and cash, whether pursuant to any plan or merger,
consolidation, reorganization, recapitalization or readjustment, or otherwise,
(e) upon conversion of such securities pursuant to their terms into other
securities, (f) upon exercise of subscription, purchase or other similar rights
represented by such securities, (g) for the purpose of exchanging interim
receipts or temporary securities for definitive securities, (h) for other
proper purposes. As to any deliveries made by Custodian pursuant to items (a),
(b), (d), (e), (f), or (g), securities or cash receivable in exchange therefor
shall be deliverable to Custodian. Before making any such transfer, exchange
or delivery, Custodian shall receive (and may rely upon) an officers'
certificate requesting such transfer, exchange or delivery, and stating that it
is for a purpose permitted under the terms of items (a) through (g) inclusive
of this Section 5 and also, in respect of item (h), upon receipt of an
officers' certificate specifying the securities to be delivered, setting forth
the purpose for which such delivery is to be made, declaring such purpose to be
a proper purpose, and naming the person or persons to whom delivery of such
securities shall be made; provided, however, that an officers' certificate need
not precede any such transfer, exchange or delivery of a money market
instrument if an authorized officer of the Company issues appropriate oral
instructions to Custodian and an appropriate officers' certificate is received
by Custodian within two business days thereafter.
6. Custodian's Acts Without Instructions
Unless and until Custodian receives an officers' certificate or
other written instructions to the contrary, Custodian shall: (a) present for
payment all coupons and other income items held by it for the account of the
Fund which call for payment upon presentation and hold the cash received by it
upon such payment for the account of the Fund; (b) collect interest and cash
dividends received, with notice to the Fund, for the account of the Fund; (c)
hold for the account of the Fund hereunder all stock dividends, rights and
similar securities issued with respect to any securities held by it hereunder;
and (d) execute as agent on behalf of the Fund all necessary ownership
certificates required by the Internal Revenue Code or the Income Tax
Regulations of the United States Treasury Department or under the laws of any
state now or hereafter in effect, inserting the Fund's name on such
certificates as the owner of the securities covered thereby, to the extent it
may lawfully do so.
7. Registration of Securities
Except as otherwise directed by an officers' certificate Custodian
shall register all securities, except such as are in bearer form, in nominee
form, and shall execute and deliver all
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such certificates in connection therewith as may be required by such laws or
regulations or under the laws of any state. Custodian shall use its best
efforts to insure that the specific securities held by it hereunder shall be at
all times identifiable in its records.
The Fund shall from time to time furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for transfer,
or to register in the name of a nominee, any securities which it may hold for
the account of the Fund and which from time to time may be registered in the
name of the Fund.
8. Voting and Other Action
Neither Custodian nor any nominee of Custodian shall vote any of
the securities held hereunder by or for the account of the Fund, except in
accordance with the guidelines approved by the Company.
9. Transfer Tax and Other Disbursements
The Fund shall pay or reimburse Custodian from time to time for
any transfer taxes payable upon transfers of securities made hereunder, and for
all other necessary, reasonable and proper disbursements and expenses made or
incurred by Custodian in the performance of this Agreement.
Custodian shall execute and deliver such certificates in
connection with securities delivered to it or by it under this Agreement as may
be required, under the provisions of the Internal Revenue Code and any
Regulations of the Treasury Department issued thereunder, or under the laws of
any state, to exempt from taxation any exemptable transfers and/or deliveries
of any such securities.
10. Concerning Custodian
The Custodian shall not be entitled to compensation for providing
custody services to the Fund pursuant to this Agreement so long as Custodian or
Xxxxx Fargo Nikko Investment Advisors [OR ITS SUCCESSOR] receives fees for
providing investment advisory (or sub-advisory) services to the Fund. If it or
Xxxxx Fargo Nikko Investment Advisors [OR ITS SUCCESSOR] no longer receives
compensation for providing such services, Custodian shall be entitled to such
compensation as it may from time negotiate with the Company.
Custodian shall not be liable for any action taken in good faith
upon any certificate herein described or certified copy of any resolution of
the Board of Directors, and may rely on the genuineness of any such document
which it may in good faith believe to have been validly executed.
The Fund agrees to reimburse and make Custodian and its nominee
whole from all taxes, charges, expenses, assessments, claims, and liabilities
(including reasonable attorney's fees) incurred or assessed against it or by
its nominee in connection with the performance of this
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Agreement, except such as may arise from Custodian's or its nominee's own
negligent action, negligent failure to act or willful misconduct. In the event
of any advance of cash for any purpose made by Custodian resulting from orders
or instructions of the Company, or in the event that Custodian or its nominee
shall incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Agreement (except such
as may arise from Custodian or its nominee's own negligent action, negligent
failure to act or willful misconduct, and excluding any compensation payable by
the Company to Custodian hereunder), any property at any time held for the
account of the Fund shall be security therefor.
Custodian shall reimburse, indemnify and make the Fund whole for
any actual loss or damages, including reasonable fees and expenses of counsel,
arising from Custodian's negligent action, negligent failure to act or its
willful misconduct.
11. Reports by Custodian
Custodian shall furnish the Fund from time to time with a
statement summarizing all transactions and entries for the account of the Fund.
Custodian shall furnish the Fund at the end of every month with a list of the
portfolio securities held for the Fund showing the aggregate cost of each
issue. Custodian shall furnish the Fund, at the close of each quarter of the
Fund's fiscal year, with a list showing the cost of the securities held by it
for the Fund hereunder, adjusted for all commitments confirmed by the Fund as
of such close, certified by a duly authorized officer of Custodian. The books
and records of Custodian pertaining to its actions under this Agreement shall
be open to inspection and audit at reasonable times by officers of, and
auditors employed by, the Company.
12. Termination of Agreement
This Agreement may be terminated by the Company on ninety (90)
days notice, given in writing and sent by registered mail, to Custodian at 00
Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or to the Company at 000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. Upon termination
of this Agreement, pending appointment of a successor to Custodian, Custodian
shall deliver cash, securities or other property of the Fund only to a bank (as
defined in the Investment Company Act of 1940, as amended; the "1940 Act")
located in San Francisco, California of its own selection, having an aggregate
capital, surplus and undivided profits, as shown by its last published report
of condition of not less than Two Million Dollars ($2,000,000) as custodian for
the Fund to be held under terms similar to those of this Agreement provided,
however, that Custodian shall not be required to make any such delivery or
payment until full payment shall have been made by the Fund of all liabilities
constituting a charge on or against Custodian, and until full payment shall
have been made to Custodian of all its fees, compensation, costs and expenses,
subject to the provisions of Section 10 of this Agreement. This Agreement may
not be assigned by Custodian without the consent of the Company, authorized or
approved by a resolution of its Board of Directors.
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13. Deposits of Securities in Securities Depositories
No provision of the Agreement shall be deemed to prevent the use
by Custodian of a central securities clearing agency or securities depository;
provided, however, that Custodian and the central securities clearing agency or
securities depository meet all applicable federal and state laws and
regulations (including all applicable requirements of the 1940 Act and the
rules and regulations promulgated thereunder) and the Board of Directors
approves by resolution the use of such central securities clearing agency or
securities depository.
14. Records
To the extent that Custodian in any capacity prepares or maintains
any records required to be maintained and preserved by the Company pursuant to
the provisions of the 1940 Act or the rules and regulations promulgated
thereunder, Custodian agrees to make any such records available to the Company
upon request and to preserve such records for the periods prescribed in Rule
31a-2 under the 1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date above- written by their respective
representatives thereunto duly authorized.
STAGECOACH INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[NAME OF ENTITY]
By:
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Name:
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Title:
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By:
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Name:
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Title:
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