1
EXHIBIT 8(c)
CUSTODIAN AGREEMENT
CONESTOGA FAMILY OF FUNDS
This Agreement, dated as of the _____ day of , 1996 by and
between Conestoga Family of Funds (the "Company"), a business trust duly
organized under the laws of the Commonwealth of Massachusetts and CoreStates
Bank, N.A. (the "Bank").
WITNESSETH:
WHEREAS, the Company desires to appoint the Bank to act as Custodian of
its portfolio securities, cash and other property from time to time deposited
with or collected by the Bank for the Trust;
WHEREAS, the Bank is qualified and authorized to act as Custodian for the
Company and the separate series thereof except the International Equity Fund
(each a "Fund" and, collectively, the "Funds"), and is willing to act in such
capacity upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto, intending to be legally bound,
do hereby agree as follows:
SECTION 1. The terms as defined in this Section wherever used in this
Agreement, or in any amendment or supplement hereto, shall have meanings herein
specified unless the context otherwise requires.
CUSTODIAN: The term Custodian shall mean the Bank in its capacity as Custodian
under this Agreement.
DEPOSITORY: The term Depository means any depository service which acts as a
system for the central handling of securities where all securities of any
particular class or series of an issuer deposited within the system are treated
as fungible and may be transferred by bookkeeping entry without physical
delivery.
PROPER INSTRUCTIONS. For purposes of this Agreement, the Custodian shall be
deemed to have received Proper Instructions upon receipt of written (including
instructions received by means of computer terminals or facsimile
transmissions), telephone or telegraphic instructions from a person or persons
authorized from time to time by the Trustees of the Company to give the class
of instructions. Telephone or telegraphic instructions shall be confirmed in
writing by such person or persons as said Trustees shall have from time to time
authorized to give the particular particular
- 1 -
2
class of instructions in question. The Custodian may act upon telephone
or telegraphic instructions without awaiting receipt of written confirmation,
and shall not be liable for the Trust's failure to confirm such instructions in
writing.
SECURITIES: The term Securities means stocks, bonds, rights, warrants and all
other negotiable or non-negotiable paper issued in certificated or book-entry
form commonly known as "securities" in banking custom or practice.
SHAREHOLDERS: The term Shareholders shall mean the registered owners from time
to time of the Shares of the Companyin accordance with the registry records
maintained by the Companyor agents on its behalf.
SHARES: The term Shares of the Company shall mean the units of beneficial
interest.
SECTION 2. The Company hereby appoints the Custodian as Custodian of the
Company's cash, Securities and other property, to be held by the Custodian as
provided in this Agreement. The Custodian hereby accepts such appointment
subject to the terms and conditions hereinafter provided. The Bank shall open
a separate custodial account in the name of the Company on the books and
records of the Bank to hold the Securities of the Company deposited with,
transferred to or collected by the Bank for the account of the Company, and a
separate cash account to which the Bank shall credit monies received by the
Bank for the account of or from the Company. Such cash shall be segregated
from the assets of others and shall be and remain the sole property of the
Company.
SECTION 3. The Company shall from time to time file with the Custodian a
certified copy of each resolution of its Board of Trustees authorizing the
person or persons to give Proper Instructions and specifying the class of
instructions that may be given by each person to the Custodian under this
Agreement, together with certified signatures of such persons authorized to
sign, which shall constitute conclusive evidence of the authority of the
officers and signatories designated therein to act, and shall be considered in
full force and effect with the Custodian fully protected in acting in reliance
thereon until it receives written notice to the contrary; provided, however,
that if the certifying officer is authorized to give Proper Instructions, the
certification shall be also signed by a second officer of the Company.
SECTION 4. The Company will cause to be deposited with the Custodian
hereunder the applicable net asset value of Shares sold from time to time
whether representing initial issue, other stock or reinvestments of dividends
and/or distributions payable to Shareholders.
- 2 -
3
SECTION 5. The Bank, acting as agent for the Company, is authorized,
directed and instructed subject to the further provisions of this Agreement:
(a) to hold Securities issued only in bearer form in bearer form;
(b) to register in the name of the nominee of the Bank, the Bank's
Depositories, or sub-custodians, (i) Securities issued only in
registered form, and (ii) Securities issued in both bearer and
registered form, which are freely interchangeable without penalty;
(c) to deposit any Securities which are eligible for deposit (i) with any
domestic or foreign Depository on such terms and conditions as such
Depository may require, including provisions for limitation or
exclusion of liability on the part of the Depository; and (ii) with
any sub-custodian which the Bank uses, including any subsidiary or
affiliate of the Bank;
(d) (i) to credit for the account of the Company all proceeds received
and payable on or in respect of the assets maintained
hereunder,
(ii) to debit the account of the Company for the cost of acquiring
Securities the Bank has received for the Company, against
delivery of such Securities to the Bank,
(iii) to present for payment Securities and other obligations
(including coupons) upon maturity, when called for redemption,
and when income payments are due, and
(iv) to make exchanges of Securities which, in the Bank's opinion,
are purely ministerial as, for example, the exchange of
Securities in temporary form for Securities in definitive form
or the mandatory exchange of certificates;
(e) to forward to the Company, and/or any other person designated by the
Company, all proxies and proxy materials received by the Bank in
connection with Securities held in the Company's account, which have
been registered in the name of the Bank's nominee, or are being held
by any Depository, or sub-custodian, on behalf of the Bank;
(f) to sell any fractional interest of any Securities which the Bank has
received resulting from any stock dividend, stock split,
distribution, exchange, conversion or similar activity;
- 3 -
4
(g) to release the Company's name, address and aggregate share position
to the issuers of any domestic Securities in the account of the
Company, provided, however, the Company may instruct the Bank not to
provide any such information to any issuer;
(h) to endorse and collect all checks, drafts or other orders for the
payment of money received by the Bank for the account of or from the
Company;
(i) at the direction of the Company, to enroll designated Securities
belonging to the Company and held hereunder in a program for the
automatic reinvestment of all income and capital gains distributions
on those Securities in new shares (an "Automatic Reinvestment
Program"), or instruct any Depository holding such Securities to
enroll those Securities in an Automatic Reinvestment Program;
(j) at the direction of the Company, to receive, deliver and transfer
Securities and make payments and collections of monies in connection
therewith, enter purchase and sale orders and perform any other acts
incidental or necessary to the performance of the above acts with
brokers, dealers or similar agents selected by the Company, including
any broker, dealer or similar agent affiliated with the Bank, for the
account and risk of the Company in accordance with accepted industry
practice in the relevant market, provided, however, if it is
determined that any certificated Securities transferred to a
Depository or sub-custodian, the Bank, or the Bank's nominee, the
Bank's sole responsibility for such Securities under this Agreement
shall be to safekeep the Securities in accordance with Section 11
hereof; and
(k) to notify the Company and/or any other person designated by the
Company upon receipt of notice by the Bank of any call for
redemption, tender offer, subscription rights, merger, consolidation,
reorganization or recapitalization which (i) appears in The Wall
Street Journal (New York edition), The Standard & Poor's Called Bond
Record for Preferred Stocks, Financial Daily Called Bond Service, The
Xxxxx Services, any official notifications from The Depository Trust
Company and such other publications or services to which the Bank may
from time to time subscribe, (ii) requires the Bank to act in
response thereto, and (iii) pertain to Securities belonging to the
Company and held hereunder which have been registered in the name of
the Bank's nominee or are being held by a Depository or sub-custodian
on behalf of the Bank. Notwithstanding anything contained herein to
the contrary, the Company shall have the sole responsibility for
monitoring the applicable dates on which Securities with put option
features must be exercised. All
- 4 -
5
solicitation fees payable to the Bank as agent in connection herewith
will be retained by the Bank unless expressly agreed to the contrary
in writing by the Bank.
Notwithstanding anything in this Section to the contrary, the Bank is
authorized to hold Securities for the Company which have transfer limitations
imposed upon them by the Securities Act of 1933, as amended, or represent
shares of mutual funds (i) in the name of the Company, (ii) in the name of the
Bank's nominee, or (iii) with any Depository or sub-custodian.
SECTION 6. The Custodian's compensation shall be as set forth in
Schedule A hereto attached, or as shall be set forth in amendments to such
schedule approved by the Company and the Custodian. The Bank is authorized to
charge the Company's account for such compensation. All expenses and taxes
payable with respect to the Securities in the account of the Company including,
without limitation, commission charges on purchases and sales and the amount of
any loss or liability for stockholders' assessments or otherwise, claimed or
asserted against the bank or against the Bank's nominee by reason of any
registration hereunder shall be charged to the Company.
SECTION 7. In connection with its functions under this Agreement, the
Custodian shall:
(a) render to the Company a daily report of all monies received or paid
on behalf of the Trust; and
(b) create, maintain and retain all records relating to its activities
and obligations under this Agreement in such manner as will meet the
obligations of the Company with respect to said Custodian's
activities in accordance with generally accepted accounting
principles. All records maintained by the Custodian in connection
with the performance of its duties under this Agreement will remain
the property of the Company and in the event of termination of this
Agreement will be relinquished to the Company.
SECTION 8. Any Securities deposited with any Depository or with any
sub-custodian will be represented in accounts in the name of the Bank which
include only property held by the Bank as Custodian for customers in which the
Bank acts in a fiduciary or agency capacity.
Should any Securities which are forwarded to the Bank by the Company, and which
are subsequently deposited to the Bank's account in any Depository or with any
sub-custodian, or which the Company may arrange to deposit in the Bank's
account in any Depository or with any sub-custodian, not be deemed acceptable
for deposit by such
- 5 -
6
Depository or sub-custodian, for any reason, and as a result thereof there is a
short position in the account of the Bank with the Depository for such
Security, the Company agrees to furnish the Bank immediately with like
Securities in acceptable form.
SECTION 9. The Company represents and warrants that: (i) it has the
legal right, power and authority to execute, deliver and perform this Agreement
and to carry out all of the transactions contemplated hereby; (ii) it has
obtained all necessary authorizations; (iii) the execution, delivery and
performance of this Agreement and the carrying out of any of the transactions
contemplated hereby will not be in conflict with, result in a breach of or
constitute a default under any agreement or other instrument to which the
Company is a party or which is otherwise known to the Trust; (iv) it does not
require the consent or approval of any governmental agency or instrumentality,
except any such consents and approvals which the Company has obtained; (v) the
execution and delivery of this Agreement by the Company will not violate any
law, regulation, charter, by-law, order of any court or governmental agency or
judgment applicable to the Company; and (vi) all persons executing this
Agreement on behalf of the Company and carrying out the transactions
contemplated hereby on behalf of the Company are duly authorized to do so.
In the event any of the foregoing representations should become untrue,
incorrect or misleading, the Company agrees to notify the Bank immediately in
writing thereof.
The names "Conestoga Family of Funds" and "Trustees of Conestoga Family of
Funds" refer respectively to the trust created and the Trustees, as trustees
but not individually or personally, acting from time to time under a
Declaration of Trust dated August 1, 1989 which is hereby referred to and a
copy of which is on file at the office of the State Secretary of the
Commonwealth of Massachusetts and at the principal office of the Fund. The
obligations of "Conestoga Family of Funds" entered into in the name or on
behalf thereof by any of the Trustees, represenatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
trustees, shareholders or represenatives of the Company personally, but bind
only the trust property. Notwithstanding any other provision of this
Agreement, all persons, including the parties hereto, dealing with any
portfolio or class of shares of the Company must look solely to the property
belonging to such portfolio or class for the enforcement of any claims against
the Company.
SECTION 10. The Bank represents and warrants that: (i) it has the legal right,
power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Bank is a
- 6 -
7
party or which is otherwise known to the Bank; (iv) it does not require the
consent or approval of any governmental agency or instrumentality, except any
such consents and approvals which the Bank has obtained; (v) the execution and
delivery of this Agreement by the Bank will not violate any law, regulation,
charter, by-law, order of any court or governmental agency or judgment
applicable to the Bank; and (vi) all persons executing this Agreement on behalf
of the Bank and carrying out the transactions contemplated hereby on behalf of
the Bank are duly authorized to do so. In the event that any of the foregoing
representations should become untrue, incorrect or misleading, the Bank agrees
to notify the Company immediately in writing thereof.
SECTION 11. All cash and Securities held by the Bank hereunder shall be kept
with the care exercised as to the Bank's own similar property. The Bank may at
its option insure itself against loss from any cause but shall be under no
obligation to insure for the benefit of the Company.
SECTION 12. No liability of any kind shall be attached to or incurred by the
Custodian by reason of its custody of the Company's assets held by it from time
to time under this Agreement, or otherwise by reason of its position as
Custodian hereunder except only for its own negligence, bad faith, or willful
misconduct in the performance of its duties as specifically set forth in the
Custodian Agreement. Without limiting the generality of the foregoing
sentence, the Custodian:
(a) may rely upon the advice of counsel for the Company; and for any
action taken or suffered in good faith based upon such advice or
statements the Custodian shall not be liable to anyone;
(b) shall not be liable for anything done or suffered to be done in good
faith in accordance with any request or advice of, or based upon
information furnished by, the Company or its authorized officers or
agents;
(c) is authorized to accept a certificate of the Secretary or Assistant
Secretary of the Company, or Proper Instructions, to the effect that
a resolution in the form submitted has been duly adopted by its Board
of Trustees or by the Shareholders, as conclusive evidence that such
resolution has been duly adopted and is in full force and effect; and
(d) may rely and shall be protected in acting upon any signature, written
(including telegraph or other mechanical) instructions, request,
letter of transmittal, certificate, opinion of counsel, statement,
instrument, report, notice, consent, order, or other paper or
document reasonably believed by it to be genuine and to have been
signed, forwarded or presented by the purchaser, Company or other
proper party or parties.
- 7 -
8
SECTION 13. The Company, its successors and assigns do hereby fully indemnify
and hold harmless the Custodian its successors and assigns, from any and all
loss, liability, claims, demand, actions, suits and expenses of any nature as
the same may arise from the failure of the Company to comply with any law,
rule, regulation or order of the United States, any state or any other
jurisdiction, governmental authority, body, or board relating to the sale,
registration, qualification of units of beneficial interest in the Company, or
from the failure of the Company to perform any duty or obligation under this
Agreement.
Upon written request of the Custodian, the Company shall assume the entire
defense of any claim subject to the foregoing indemnity, or the joint defense
with the Custodian of such claim, as the Custodian shall request. The
indemnities and defense provisions of this Section 13 shall indefinitely
survive termination of this Agreement.
SECTION 14.This Agreement may be amended from time to time without notice to or
approval of the Shareholders by a supplemental agreement executed by the
Companyand the Bank and amending and supplementing this Agreement in the manner
mutually agreed.
SECTION 15. Either the Company or the Custodian may give thirty (30) days'
written notice to the other of the termination of this Agreement, such
termination to take effect at the time specified in the notice. In case such
notice of termination is given either by the Company or by the Custodian, the
Trustees of the Company shall, by resolution duly adopted, promptly appoint a
successor Custodian (the "Successor Custodian") which Successor Custodian shall
be a bank, trust company, or a bank and trust company in good standing, with
legal capacity to accept custody of the cash and Securities of a mutual fund.
Upon receipt of written notice from the Company of the appointment of such
Successor Custodian and upon receipt of Proper Instructions, the Custodian
shall deliver such cash and Securities as it may then be holding hereunder
directly and only to the Successor Custodian. Unless or until a Successor
Custodian has been appointed as above provided, the Custodian then acting shall
continue to act as Custodian under this Agreement.
Every Successor Custodian appointed hereunder shall execute and deliver an
appropriate written acceptance of its appointment and shall thereupon become
vested with the rights, powers, obligations and custody of its predecessor
Custodian. The Custodian ceasing to act shall nevertheless, upon request of
the Company and the Successor Custodian and upon payment of its charges and
disbursements, execute an instrument in form approved by its counsel
transferring to the Successor Custodian all the predecessor Custodian's rights,
duties, obligations and custody.
- 8 -
9
Subject to the provisions of Section 21 hereof, in case the Custodian shall
consolidate with or merge into any other corporation, the corporation remaining
after or resulting from such consolidation or merger shall ipso facto without
the execution of filing of any papers or other documents, succeed to and be
substituted for the Custodian with like effect as though originally named as
such, provided, however, in every case that said Successor corporation
maintains the qualifications set out in Section 17(f) of the Investment Company
Act of 1940, as amended.
SECTION 16. This Agreement shall take effect when assets of the Company are
first delivered to the Custodian.
SECTION 17. This Agreement may be executed in two or more counterparts, each
of which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 18. A copy of the Declaration of Trust of the Company is on file with
the Secretary of State of the Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Company as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or Shareholders
of the Company individually, but binding only upon the assets and property of
the Company. No Fund of the Company shall be liable for the obligations of any
other Fund of the Company.
SECTION 19. The Custodian shall create and maintain all records relating to
its activities and obligations under this Agreement in such manner as will meet
the obligations of the Company under the Investment Company Act of 1940, as
amended, with particular attention to Section 31 thereof and Rules 31a-1 and
31a-2 thereunder, applicable Federal and state tax laws and any other law or
administrative rules or procedures which may be applicable to the Company.
Subject to security requirements of the Custodian applicable to its own
employees having access to similar records within the Custodian, the books and
records of the Custodian pertaining to this Agreement shall be open to
inspection and audit at any reasonable times by officers of, attorneys for, and
auditors employed by, the Company.
SECTION 20. Nothing contained in this Agreement is intended to or shall
require the Custodian in any capacity hereunder to perform any functions or
duties on any holiday or other day of special observance on which the Custodian
is closed. Functions or duties normally scheduled to be performed on such days
shall be performed on, and as of, the next business day the Custodian is open.
- 9 -
10
SECTION 21. This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Company without the written
consent of the Custodian, or by the Custodian without the written consent of
the Company, authorized or approved by a resolution of its Board of Trustees.
SECTION 22. All communications (other than Proper Instructions which are to be
furnished hereunder to either party, or under any amendment hereto) shall be
sent by mail to the address listed below, provided that in the event that the
Bank, in its sole discretion, shall determine that an emergency exists, the
Bank may use such other means of communications as the Bank deems advisable.
To the Company: SEI Corporation
000 X. Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Attn. Legal Department
copy to: Xxxxx X. Xxxxxx, Xx., Esq.
-
To the Bank:
-----------------------------
-----------------------------
-----------------------------
SECTION 23. This Agreement, and any amendments hereto, shall be governed,
construed and interpreted in accordance with the laws of Commonwealth of
Massachusetts applicable to agreements made and to be performed entirely within
such jurisdiction.
- 10 -
11
IN WITNESS WHEREOF, the Company and the Custodian have caused this Agreement to
be signed by their respective officers as of the day and year first above
written.
CONESTOGA FAMILY OF FUNDS
By:
--------------------------
Name:
Title:
CORESTATES BANK, N.A.
By:
--------------------------
Name:
Title:
- 11 -
12
SCHEDULE A
CONESTOGA FAMILY OF FUNDS
FEE SCHEDULE
TRANSACTIONS FEE
DTC $10.00
FBE $10.00
PTC $18.00
MMI, Book Entry $10.00
MMI, Physical $10.00
Physical $22.00
Strips $40.00
Mortgage-Backed $40.00
Outgoing Money Wire $7.00
ISSUE SAFEKEEPING (ANNUAL) FEE
DTC $48.00
FBE $48.00
PTC $66.00
MMI, Book Entry $48.00
MMI, Physical $48.00
Physical $48.00
Strips $120.00
Mortgage-Backed $120.00
- 12 -
