EXHIBIT 24(B)(8)(B)
DOMESTIC CORPORATE CUSTODY AGREEMENT
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AGREEMENT dated as of ______________ between XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, a New York banking corporation, (the "Bank") and
______________________________, a Maryland corporation (the "Client"), for
_____________________________.
1. The Bank agrees to establish and maintain for the account of the
Client (a) one or more custody accounts (singly a "Custody Account" and
collectively the Custody Accounts") for any and all stocks, bonds and other
securities (the "Securities") from time to time delivered to or held by the
Bank, The Depository Trust Company ("DTC"), The Participant Trust Company
("PTC"), or the Federal Reserve Bank of New York ("FRB") or such other
institutions in which the assets of an investment company may be maintained
pursuant to Rule 17f-4 of the Investment Company Act of 1940 ("1940 Act"), (the
DTC, PTC and FRB and such other institutions being, hereafter individually
referred to as a "Securities Depository" and collectively as "Securities
Depositories") under the terms of this Agreement and (b) one or more deposit
accounts (singly a "Deposit Account" and collectively the "Deposit Accounts")
for any and all cash (the "Cash") delivered to or held by the Bank under the
terms of this Agreement. For purposes of this Agreement, the term "Custody
Accounts" shall include segregated accounts for Client's assets which from time
to time shall be established and maintained by the Bank hereunder. Custodian
agrees that all arrangements for the custody of securities with Securities
Depositories shall be established and maintained in accordance with the
requirements of Rule 17f-4.
2. (a) The records maintained by the Bank, in connection with the
Custody Accounts and the Deposit Accounts will reflect all Securities and Cash
maintained in accordance with Section 1 hereof.
(b) The Bank will require each Securities Depository to identify the
Custody Account maintained by the Bank with such Securities Depository in which
Securities are held as a Custody Account of the Bank for the Client. To the
extent permitted by the provisions of Rule 17f-4 under the 1940 Act, Securities
held in the Custody Account maintained by the Bank with such Securities
Depository may be commingled with securities of other clients of the Bank but
not with securities owned by the Bank. If the Client's Securities are commingled
in a Securities Depository with securities of other Bank clients, Bank will, by
book-entry or otherwise, identify as belonging to Client, Client's quantity of
securities in the fungible bulk of
securities (i) registered on behalf of Bank in the name of the Securities
Depository or the Securities Depository's nominee or (ii) shown on Bank's
account on the books of the Securities Depository.
(c) The Bank will physically segregate any Securities which are
physically held by it, from those it physically holds for other clients.
3. Unless and until the Bank receives Authorized Instructions (as
such term is defined in Section 16 hereof) to the contrary, the Bank shall make
payments of Cash only in the following circumstances:
(a) in connection with the purchase of any Securities for the Client
and the delivery of such Securities to the Bank or to the account maintained by
the Bank with a Securities Depository for credit to a Custody Account of the
Client, each such payment to be made in amounts specified by Authorized
Instructions;
(b) for the payment of operating expenses on behalf of the Client,
each such payment be made in amounts specified in Authorized Instructions;
(c) for any payments to be made in connection with, the sale,
conversion, exchange or surrender of any Securities, each such payment to be
made in amounts specified in Authorized Instructions;
(d) for other purposes of the Client, including the disbursement of
Cash for redemption of shares of the Client, as described in Authorized
Instructions; and
(e) upon the termination of this Agreement as set forth in Section 17
of this Agreement.
4. Unless and until the Bank receives Authorized Instructions to the
contrary, Securities will be transferred, exchanged or delivered by the Bank in
the following circumstances:
(a) upon the sale of Securities and receipt by the Bank of payment
therefor in accordance with Authorized Instructions; provided that when the Bank
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is instructed to deliver Securities against payment, delivery will be made and
payment will be received in accordance with applicable law and generally
accepted local market practice. In the absence of the negligence, bad faith,
reckless disregard of duty or willful misconduct of Bank, a Securities
Depository or any of their respective agents, the Client agrees that it bears
the risk that the recipient of such Securities may fail to make payment, return
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such Securities or hold such Securities or the proceeds of their sale in trust
for the Client or for the Bank as the Client's agent;
(b) in exchange for or upon conversion into other Securities or Cash
pursuant to a plan of merger, consolidation, reorganization, recapitalization or
readjustment;
(c) upon the conversion of Securities pursuant to their terms into
other Securities;
(d) upon the exercise of subscription, purchase or other similar
rights represented by Securities;
(e) for other purposes of the Client as described in Authorized
Instructions; and
(f) upon the termination of this Agreement as set forth in Section 17
of this Agreement.
5. Until the Bank receives Authorized Instructions to the contrary, the
Bank will do the following:
(a) deposit all Cash delivered to or held by the Bank for the account
of the Client in a Deposit Account;
(b) take such steps as are consistent with its duty of care set forth
in Paragraph 7 hereof to secure or otherwise prevent the loss of rights
relating, to any Securities;
(c) immediately notify the Client upon receiving notices or reports
of corporate actions affecting, any Securities;
(d) present for payment maturing obligations and hold monies received
upon presentation of such maturing, obligations for credit to a Deposit Account
and, immediately after receipt of notice of calls of redemption of Securities
notify Client and take such action as specified in Authorized Instructions with
respect to that call;
(e) execute in the name of the Client such ownership and other
certificates as may be required to obtain payment in respect of any Securities;
(f) accept and open all mail directed to the Client in care of the
Bank and act accordingly;
(g) not disclose the Client's name, address and Securities position
to the issuers of Securities upon the request of such issuers;
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(h) dispose of fractional interests received by the Bank as a result
of stock dividends by selling any fractional interest received;
(i) make periodic reports, including monthly asset listings and daily
principal and income advices, with respect to the Securities and Cash including,
but not limited to, notification of any transaction affecting the Securities or
Cash and provide such other information and reports as Client may from time to
time reasonably request;
(j) with advance notice by Bank and advance written approval by
Client, exchange all monies received in a foreign currency in connection with
any foreign Securities, including income and the proceeds of sales and
redemptions, into U.S. Dollars at the prevailing rate of exchange in New York as
determined by the Bank for credit to a Deposit Account immediately upon receipt
of notice of such monies having been received; and
(k) immediately forward to the Client reports the Bank receives, from
any Securities Depository with respect to such Securities Depository's system of
internal accounting controls and, upon reasonable request of the Client or as
required by law or regulation, a copy of the annual report prepared by the
independent public accountants of the Bank on the Bank's system of internal
accounting controls;
(l) collect dividends, interest and other payments made and stock
dividends, rights and similar distributions made or issued with respect to
Securities;
(m) immediately after the Bank becomes aware thereof notify the
Client of any rights offering by any issuer of Securities and, to the extent
permitted by law applicable to the Bank, and following further written notice to
Client, sell such rights in the principal market for such rights and deposit the
proceeds of such sale in the Client's Deposit Account if the Client does not
instruct the Bank as to whether or not to purchase securities under such rights
offering, by the deadline for such purchase;
(n) immediately after receipt thereof deliver to the Client those
communications relating to any Securities which call for voting, or the exercise
of rights or other specific action (including materials relating to legal
proceedings intended to be transmitted to holders of such Securities);
(o) to the extent required or permitted by applicable law and
practice, require the Banks or Securities Depositories' nominees to execute and
deliver to the Client proxies and proxy materials relating to Securities
registered in the name of such
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nominees but without indicating the manner in which such proxies are to be voted
and deliver proxies relating to bearer Securities in accordance with Authorized
Instructions and applicable law and practice; and
(p) with respect to any corporate actions not listed above, the
Bank shall immediately inform the Client thereof and shall (in the absence of
Authorized Instructions from the Client within any prescribed deadline) take
such action as it considers appropriate in the circumstances.
6. The Bank will forward to the Client all annual and interim
stockholder reports which the Bank receives relating to any Securities.
7. The Bank shall comply with the provisions of the 1940 Act which
directly apply to services provided to Client hereunder. The Bank shall have
responsibility as a bailee for hire under the law of the State of New York with
respect to any Securities or Cash delivered to or received by it or a Securities
Depository for the account of the Client. Without limiting the generality of
the foregoing, the Bank will hold the Client harmless from and indemnify it
against any loss that occurs as a result of the negligence, bad faith, reckless
disregard of duty or willful misconduct of the Bank or any Securities
Depository. Notwithstanding any provision of this Agreement to the contrary, the
delivery of Securities to the Bank or to a Securities Depository shall trigger
each and every duty, right and obligation of the Bank hereunder.
8. The Bank will, at its sole discretion, accept orders from the
Client for the purchase or sale of Securities and either execute such orders
itself or by means of an agent, such as a broker or other financial organization
of its choice, subject to the fees and commissions in effect from time to time.
In the absence of its negligence, bad faith, reckless disregard of its duties or
its willful misconduct, the Bank will not be responsible for any act or
omission, or for the solvency, of any broker or agent selected by the Bank to
effect any transaction for the account of the Client. When instructed to buy or
sell Securities for which an affiliate of the Bank acts as a dealer, the Bank
will buy or sell such Securities from or to such affiliate only with the advance
written approval of the Client.
9. (a) The Client agrees that when the Bank is instructed to
receive any Securities against payment, it will have sufficient Cash in the
Deposit Accounts or will make sufficient funds available to the Bank for such
purpose.
(b) Any dividends or interest automatically credited to the
Deposit Accounts which are not subsequently received by the Bank from the entity
making such payment will be reimbursed
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to the Bank and the Bank, following receipt of advance written approval by the
Client (which approval shall not be unreasonably withheld), may debit the
Deposit Accounts for this purpose.
10. Securities may be registered in the name of the Bank's nominee or, to
the extent permitted by applicable securities laws as to any Securities in the
possession of a Securities Depository, in the name of such Securities
Depository's nominee. The Client agrees to hold such nominees harmless from any
liability that may arise solely because the shareholder records of the issuer of
the Securities indicates that the nominee is the holder of record of such
Securities, but not for actions or inactions of such nominee.
11. The Bank shall be responsible for the performance of those duties as
are set forth herein or contained in Authorized Instructions given to the Bank
that are not contrary to the provisions of this Agreement. The Bank is not under
any duty to provide the Client with investment advice or to supervise its
investments.
12. Subject to the standard of care set forth in Section 7 of this
Agreement:
(a) all collections of funds or other property paid or distributed
with respect to any Securities shall be made at the risk of the Client;
(b) the Bank shall have no liability for any loss occasioned by delay
in the actual receipt of notice by the Bank of any payment, redemption,
proceeding or other transaction regarding, or of any rights exercisable by the
Client in connection with, any Securities with respect to which the Bank has
agreed to take action as provided in Section 5 of this Agreement; and
(c) the Bank shall not be liable for any action taken in good faith
upon Authorized Instructions or upon any certified copy of any vote of the Board
of Directors of the Client and may rely on any such documents that it in good
faith believes to be validly executed.
13. Consistent with normal industry practice, Bank will cooperate with the
Client's independent public accountants and shall take all reasonable action in
the performance of its obligations under this Agreement to assure that the
necessary information is made available to such accountants for the expression
of their opinion, as such may be required from time to time by the Client. The
Bank will allow independent public accountants of the Client reasonable access
to the physical Securities and Cash of the Client held by Bank and to the
records of the Bank relating to the Securities and Cash as required by
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those accountants in connection with their examination of the books and records
pertaining to the affairs of the Client. Bank also will make available for
inspection and copying by the Client at all times, the books and records
pertaining to the Client that are maintained pursuant to this Agreement.
14. The Client agrees to pay the Bank as compensation for its services a
fee computed at rates determined in writing by mutual agreement of the Client
and the Bank from time to time. It is agreed that the Bank shall be compensated
for those out-of-pocket expenses arising, in connection with this Agreement
(including, without limitation, taxes, assessments, charges and attorney's fees
and expenses) which (like taxes or assessments) are not presently imposed or are
not incurred by the Bank as part of the usual and ordinary routine of performing
services of the kind performed hereunder as well as those out-of-pocket expenses
which are incidental to and are incurred by the Bank in the course of performing
the services agreed upon herein including, but not limited to, such expenses as
insurance and postage associated with shipping physical securities. The Bank is
authorized, with prior written notice from Client, to charge the Deposit
Accounts for such items and the Client hereby pledges to the Bank as security
for the payment of its fee and the fulfillment of any other obligations or
liability of any kind which the Client may have to the Bank in connection with
this Agreement, all Securities and Cash (collectively the "Collateral") held by
the Bank or a Securities Depository and hereby grants to the Bank a lien, right
of set-off and security interest in the Collateral, but only to the extent of
any outstanding unpaid amounts payable hereunder at any time. The Client agrees
that it is the duty of the Client to reconcile statements and advices sent to it
by mail or electronic media as promptly as possible and that all such statements
and advices will be considered final 90 days from the date of dispatch.
15. In the event that the Client elects to purchase or sell options, puts,
calls or futures contracts, the Client may give Bank Authorized Instructions to
open additional Segregated Custody Accounts and to take additional actions not
inconsistent with this Agreement which may be required to comply with applicable
laws and regulations, including without limitation the regulations of the
Commodities Futures Trading Commission. The Client and Bank acknowledge that
separate agreements will be required in order to effect the pledge arrangements
necessary to such transactions.
16. The term "Authorized Instructions" means any written statement,
notice, request, order, telegram, cablegram, letter or other paper or electronic
communication (including but not limited to MARS ID and XXXXXX/Securities)
actually received by the Bank and reasonably believed by it to be genuine and to
have been signed, sent or presented by two Authorized Persons. The
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term "Authorized Instructions" also includes oral instructions actually received
by it from an Authorized Person or from a person reasonably believed by the Bank
to be an Authorized Person for all securities transactions other than
transactions free of payment. The Client agrees to forward to the Bank
confirming written instructions signed by the two Authorized Persons by the
close of business on the same day as such oral instructions are given to the
Bank. The Client agrees that the fact that such confirming instructions are not
received by the Bank or that the terms of such confirming instructions vary from
the terms of the original oral instructions shall in no way affect the validity
or enforceability of the transaction authorized by such oral instructions.
Subject to the standard of care set forth in Section 7 of this Agreement, the
Client agrees that the Bank may rely on Authorized Instructions and shall incur
no liability to the Client in acting in accordance with Authorized Instructions
given to the Bank hereunder; the Client agrees to assume all risks which may
result from any action taken by the Bank in reasonable reliance in good faith on
Authorized Instructions. The term "Authorized Persons" means those officers and
employees of the Client who have been designated by or pursuant to a vote of the
Board of Directors of the Client, a certified copy of which has been or will be
filed with the Bank, to act on behalf of the Client in connection with this
Agreement. Such persons shall continue to be Authorized Persons until such time
as there has been filed with the Bank a properly certified copy of a vote of the
Board of Directors revoking the authority of such persons. The Client shall
safeguard all testkeys, identification codes or other security devices with
which the Bank provides it.
17. This Agreement may be terminated by the Bank or the Client on 60 days'
written notice to the other party, sent by registered mail. If notice of
termination is given by the Bank, two Authorized Persons shall, within 60 days
following the giving of such notice, specify in writing the names of the persons
to whom all Securities and Cash shall be delivered or paid. In such case, the
Bank, subject to the satisfaction of amounts owed to it pursuant to Section 14
hereof, will deliver such Securities and pay such Cash to the persons so
specified. If within 60 days following the giving of a notice of termination by
the Bank, the Bank does not receive from the Client the names of the persons to
whom the Bank shall deliver such Securities and pay such Cash, the Bank, at its
election, may deliver such Securities and pay such Cash to a bank or trust
company doing business in the State of New York which would be authorized to
serve as a custodian for an investment company and which has an aggregate
capital, surplus and undivided profits, as shown by its last published report,
of not less than twenty-five million dollars $25,000,000, to be held and
disposed of pursuant to the provisions of this Agreement or the Authorized
Instructions of any two Authorized Persons or may continue to hold such
Securities and Cash until the names of such persons are delivered to the Bank.
If notice of termination is
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given by the Client, the Bank, subject to the satisfaction of amounts owed to it
pursuant to Section 14 hereof, will deliver such Securities and pay such Cash to
persons specified in Authorized Instructions.
18. Except as otherwise provided in this Agreement, any notice or other
communications to the Bank is to be sent to the Bank at 00 Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000 Attention: Domestic Safekeeping Department. Any notice or other
communication to the Client is to be mailed postage prepaid and addressed to it
at the address set forth on the signature page hereof.
19. This Agreement shall be governed by and constructed in accordance with
the law of the State of New York and shall bind the parties hereto and their
successors and assigns; provided, however, that neither party may assign this
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Agreement without the prior, written consent of the other party hereto.
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By:________________________________
Title:
DELAWARE POOLED TRUST, INC.,
for
By:________________________________
Title:
ATTEST
By:________________________________
Title:
Address of Record:
Philadelphia, Pennsylvania
Attention:
Taxpayer I.D. Number: 00-0000000
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