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 CMC Fund Trust (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:
- 1 -
(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;
(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 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 nondiscretionary 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 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).
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 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.
------------------------------
By XXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address for record: 0000 XX 0xx Xxxxxx
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P.O. Box 1350
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Xxxxxxxx, Xxxxxx 00000
------------------------------
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By XXXXX XXXXXXX
------------------------------------
Authorized Signature
Appendix A
Current Fee Schedule for Columbia Management Company Small Cap Fund, Inc.
This letter describes Xxxxxx Xxxxxxx Trust Company's ("Xxxxxx Xxxxxxx")
compensation under this revised fee schedule dated June 7, 1993 with
Columbia Management Company Small Cap Fund, Inc.
Xxxxxx Xxxxxxx'x compensation shall be as follows:
Transaction Custody Rate
Country/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
be charged at the MSTC generic rates for each respective new country/new
product.
In-Kind transactions will not be charged.
Appendix A
Columbia Management Company Small Cap 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 Management
Company Small Cap 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 Xxxxxxxx, your client executive,
at (000) 000-0000, or Xxxxx Xxxxxx, your billing representative, at (718)
754-2704.
SCHEDULE A
XXXXXX XXXXXXX TRUST COMPANY
MARKET COVERAGE/CENTRAL DEPOSITORY LIST
APRIL 1993
COUNTRY AGENT CENTRAL DEPOSITORY
------- ----- ------------------
Argentina Citibank N.A. Caja de Valores
Australia Australia and New Zealand Bank CHESS**
Austria Euroclear OKB
Belgium Banque Bruxelles Xxxxxxx CIK
Brazil Banco de Boston BOVESPA
Rio de Janeiro Stock Exchange
Canada Toronto Dominion Bank CDS
Chile Citibank N.A. N/A
China Hongkong & Shanghai Bank. Corp.
Shenzhen Exchange: Citibank, N.A.
Standard Chartered Bank
Hongkong & Shanghai Bank. Corp.
Shanghai Exchange: Shanghai Exchange
Colombia Cititrust N/A
Denmark Euroclear VP
Finland Euroclear N/A
France Banque Indosuez SICOVAM
Germany BHF Bank DKV
Greece Citibank N.A. N/A
Hong Kong Hongkong & Shanghai Bank. Corp. CCASS
Hungary Euroclear (see Austria) OKB
Citibank Budapest N/A
India* Hongkong & Shanghai Bank. Corp. N/A
Indonesia Hongkong & Shanghai Bank. Corp. N/A
Ireland Allied Irish Bank N/A
Israel Bank Hapoalim SECH
Italy Barclays Bank Monte Titoii S.p.A.
Japan Xxxxxx Xxxxxxx International JASDEC
Mutual Fund Clients: Mitsubishi Bank Ltd
Jordan Arab Bank N/A
Korea Standard Chartered Bank KCD
Malaysia Oversea Chinese Banking Corp. MCD**
Mexico Citibank N.A. S.D. Indeval
Netherlands ABN Amro Bank NECIGEF
New Zealand Bank of New Zealand N/A
Norway Euroclear VPS
Registered Shares: Christiana Bank
Page 1 of 3
COUNTRY AGENT CENTRAL DEPOSITORY
------- ----- ------------------
Pakistan Standard Chartered Bank SCD**
Peru Citibank N.A. N/A
Phillippines Hongkong & Shanghai Bank. Corp. N/A
Poland Bank Polska Kasa Opieki S.A. NDS
Mutual Fund Clients: Citibank NDS
Portugal Banco Comercial Portugues N/A
Singapore Oversea Chinese Banking Corp. CDP
Spain Banco Santander SCLV
Sri Lanka Hongkong & Shanghai Bank. Corp. CDS
Sweden Euroclear VPC
Switzerland XX Xxxxxx SEGA
Taiwan* Hongkong & Shanghai Bank. Corp. TSCD
Thailand Standard Chartered Bank SDC
Turkey Citibank N.A. N/A
United Kingdom Barclays Bank PLC N/A
USA DTC DTC
National Westminster N/A
Uruguay Citibank N.A. N/A
Venezuela Citibank N.A. N/A
*Not operational until sub-custody agreement is secured.
**These central depositories are not in operation as of yet.
Page 2 of 3
Guide to Central Depository Abbreviations
-----------------------------------------
Country Mnemonic Central Depository
------- -------- ------------------
Australia** CHESS Clearing House Electronic Subregister System
Austria OKB OsterreicheKontrollbank
Belgium CIK Caisse Interprofessionelle de Depots et de Virements de Titres
Brazil BOVESPA Sao Paulo Stock Exchange
Canada CDS The Canadian Depository for Securities
Denmark VP Vaerdipapircentralen
French SICOVAM Societe Interprofessionelle pour la Compensation des Valeurs
Mobilieres
Germany DKV Deutscher Kassenverein AG
Hong Kong CCASS Central Clearing and Settlement System
Hungary OKB OsterreicheKontrollbank (of Austria)
Xxxxxx XXXX Stock Exchange Clearing House
Japan JASDEC Japan Securities Depository Center
Korea KCD Korean Central Depository
Malaysia** MCD Malaysian Central Depository
Netherlands NECIGEF Netherlands Central Institute for Giral Effectenclearing
Norway VPS Verdipapirsentralen
Pakistan** SCD Securities Central Depository Co.
Poland NDS National Depository of Securities
Singapore CDP Central Depository Pte Ltd
Spain SCLV Servicio de Compensacion y Xxxxxxxxxxx xx Xxxxxxx
Xxx Xxxxx CDS Central Depository System Pvt Ltd.
Sweden VPC Vardipapperscentralen
Switzerland SEGA Schweizerische EffektenGiro AG
Taiwan* TSCD Taiwan Securities Depository Co.
Thailand SDC Share Depository Center
*Not operational until sub-custody agreement is secured.
**These central depositories are not in operation as of yet.
Page 3 of 3
