EXHIBIT 8
CUSTODIAN AGREEMENT
THIS AGREEMENT made as of this 15th day of September 1995, between CRM
Small Cap Value Fund, a Delaware business trust, with its principal place of
business at __________________________________ (hereinafter called the "Fund"),
and The first National Bank of Boston, a national banking association with its
principal place of business in Boston, Massachusetts (hereinafter called the
"Custodian").
WHEREAS, the Fund desires that its Securities and cash shall be hereafter
held and administered by custodian as the fund's agent pursuant to the terms of
this Agreement; and
WHEREAS, the Custodian provides services in the ordinary course of its
business which will meet the fund's needs as provided for hereinafter;
NOW, THEREFORE, in consideration of the mutual promises herein made, the
Fund and the custodian agree as follows:
Section 1. DEFINITIONS.
"Bank" shall mean a bank as defined in Sec. 2(a)5 of the Investment Company
Act of 1940.
"Securities" shall mean and include stocks, shares, bonds, debentures,
notes, money market instruments or other obligations and any certificates,
receipts, warrants 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. Unless
otherwise indicated herein, "Securities" shall mean both U. S. and "foreign
securities", as that term is defined in Sec. 17(f) of the Investment
Company Act of 1940.
"Officers' Certificate" shall mean a request or directions in writing or
confirmation of oral requests or directions in writing signed in the name
of the Fund by any two of the chairman of the Executive Committee, the
President, a Vice President, the Secretary, the Clerk or the Treasurer of
the Corporation or any other persons duly authorized to sign by the Board
of Trustees or the Executive Committee of the Fund.
Section 2. CUSTODIAN AS AGENT.
The Custodian is authorized to act under the terms of this Agreement as the
Fund's agent and shall be representing the fund whenever acting within the
scope of the Agreement.
Section 3. NAMES, TITLES AND SIGNATURE OF FUND'S OFFICERS.
An Officer of the Fund will certify to the Custodian the names, titles, and
signatures of those persons authorized to sign the Officers' Certificates,
as well as names of the Board of Trustees and the Executive Committee.
Said Officer, or his or her successor, will provide the Custodian with any
changes which may occur from time to time.
The Custodian is authorized to rely and act upon written and manually
signed instructions of any person or persons (if more than one, so
indicated) names in a separate list listing separately those persons who
may authorize the withdrawal of any portion of the cash or Securities which
will be furnished from time to time signed by Officers of Fund and
certified by its Secretary or an Assistant Secretary, ("Authorized
Persons"). The Fund will provide the custodian with authenticated specimen
signatures of Authorized Persons.
The Custodian is further authorized to rely upon any instructions received
by any other means and identified as having been given or authorized by any
Authorized Person; regardless of whether such instructions shall in fact
have been authorized or given by any such persons; provided, that,
(a) the Custodian and the Fund shall have previously agreed in writing
upon the means of transmission and the method of identification for
such instructions;
(b) the Custodian has not been notified by the Fund to cease to
recognize such means and methods, and
(c) such means and methods have in fact been used.
If the Fund should so choose to have dial-up or other means of direct
access to the Custodian's accounting system for Securities in custodial
accounts, the Custodian is also authorized to rely and act upon any
instructions received by the Custodian through the terminal device,
regardless of whether such instructions shall in fact have been given or
authorized by the Fund provided that such instructions are accompanied by
passwords which have been mutually agreed to in writing by the Custodian
and the Fund and the Custodian has not been notified by the Corporation to
cease recognizing such passwords.
Where dial-up or other direct means of access to the Custodian's accounting
system for cash or Securities is utilized, the Fund agrees to indemnify the
Custodian and hold it harmless from and against any and all liabilities,
losses, damages, costs, reasonable counsel fees, and other reasonable
expenses of every nature suffered or incurred by the Custodian by reason of
or in connection with the improper use, unauthorized use and misuse by the
Fund or its employees of any terminal device with access to the Custodian's
accounting system for Securities in Custodial Accounts, unless such losses,
damages, etc., result from grossly negligent or wrongful acts of the
Custodian, its employees or agents.
Section 4. RECEIPT AND DISBURSEMENT OF MONEY.
A. The Custodian shall open and maintain the Account, subject to debit
only by a draft or order by the Custodian acting pursuant to the terms
of this Agreement. The Custodian shall hold in the Account, subject
to the provisions hereof, all cash received by it from or for the
account of the Fund.
1. The Custodian shall make payment of cash to the Account or shall debit
the Account only
(a) for the purchase of Securities for the portfolio of the Fund
upon the delivery of such Securities to the Custodian,
registered in the name of the Fund or of the nominee of the
Custodian referred to in Section 8 below;
(b) 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 the Custodian;
(c) for payments in connection with the return of the cash
collateral received in connection with Securities loaned by the
Fund;
(d) for payments in connection with futures contracts positions
held by the Fund;
(e) for payments of interest, dividends, taxes and in connection
with rights offerings; or
(f) for other proper Fund purposes.
All Securities accepted in connection with the purchase of such
Securities, if (a) usual in the course of local market practice or
(b) specifically required in instructions from the Fund, shall be
accompanied by payment of, or a "due xxxx" for, any dividends,
interest or other distributions o the issue due the purchaser.
2. Except as hereinafter provided, the Custodian shall make any payment
for which it receives direction from an Authorized Person so long as
such direction (i) is (a) in writing (or is a facsimile transmission
of a written direction), (b) electronically transmitted to the
Custodian a provided in Section 3 or (c) when written or electronic
directions cannot reasonably be given within the relevant time period,
orally when the person giving such direction assures the Custodian
that the directions will be confirmed in writing by an Authorized
Persons within twenty-four (24) hours and (ii) states that such
payment is for a purpose permitted under the terms of this subsection.
3. All funds received by the Custodian in connection with the sale,
transfer, exchange or loan of Securities will be credited to the
Account in immediately available funds as soon as reasonably possible
on the date such received funds are immediately available. Payments
for purchase of Securities for the Account made in immediately
available funds will be charged against the Account on the day of
delivery of such Securities and all other payments will be charged on
the business day after the day of delivery.
A. The Custodian is hereby authorized and required to (a) collect on
a timely basis all income and other payments with respect to
Securities held hereunder to which the Fund shall be entitled
either by law or pursuant to custom in the securities business,
and to credit such income to the Account, (b) detach and present
for payment all coupons and other income items requiring
presentation as and when they become due, (c) collect interest
when due on Securities held hereunder, and (d) endorse and
collect all checks, drafts or other orders for the payment of
money received by the Custodian for the account of the Fund.
B. If the Custodian agrees to advance cash or Securities of the
Custodian for delivery on behalf of the Fund to a third party,
any property received by the Custodian on behalf of the Fund in
respect of such delivery shall serve as security for the Fund's
obligation to repay such advance until such time as such advance
is repaid, and, in the case where such advance is extended for
the purchase of Securities which constitute "margin stock" under
Regulation U of the Board of Governors of the Federal Reserve
System, such additional Securities of the Fund, as shall be
necessary for the Custodian, in the Custodian's reasonable
determination, to be in compliance with such Regulation U also
shall constitute security for the Fund's obligation to repay such
advance. The Fund hereby grants the Custodian a security
interest in such property of the Fund to secure such advance and
agrees to repay such advance promptly without demand from the
Custodian (and in any event, as soon as reasonably practicable
following any demand by the Custodian), unless otherwise agreed
by both parties. Should the Fund fail to repay such advance as
required, the Custodian shall be entitled immediately to apply
such security to the extent necessary to obtain repayment of the
advance, subject, in the case of Fund failure to make prompt
repayment without demand, to prior notice to the Fund.
Section 5. RECEIPT OF SECURITIES.
The Custodian shall hold in the Account, segregated at all times from those
of any other persons, firms or corporations, 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 the
Custodian for, and subject at all times to the instructions of, the Fund
pursuant to the terms of this Agreement. The Custodian shall have no power
or authority to assign, hypothecate, pledge or otherwise dispose of any of
the Securities and cash, except pursuant to the directive of the Fund and
only for the account of the Fund as set for in Section 7 of this Agreement.
The Custodian and its agents (including foreign subcustodians) may make
arrangements with Depository Trust Fund ("DTC") and other foreign or
domestic depositories or clearing agencies, including the Federal Reserve
Bank and any foreign depository or clearing agency, whereby certain
Securities may be deposited for the purpose of allowing transactions to be
made by bookkeeping entry without physical delivery of such Securities,
subject to such restrictions as may be agreed upon by the Custodian and the
Fund. The Custodian shall immediately commence procedures to replace
Securities lost due to robbery, burglary or theft while such Securities are
within its control or that of its agents or employees upon discovery of
such loss.
Section 6. FOREIGN SUBCUSTODIANS AND OTHER AGENTS.
(a) In the event the Custodian places Securities, pursuant to this
Agreement, with any foreign subcustodian, the Custodian agrees
that it shall place such Securities only with those foreign
subcustodians which either satisfy the requirements of "eligible
foreign custodian" under Section 17(f) of the U. S. Investment
Company Act of 1940, or with respect to which exemptive relief
has been granted by the U. S. Securities and Exchange Commission
from the requirements of Section 17(f).
The Custodian agrees further that in placing Securities with any
such foreign subcustodian, it will enter into a written
subcustodian agreement which shall provide that: (1) the
Custodian will be adequately indemnified and the Securities so
placed adequately insured in the event of loss, as provided in
part (b) of this section; (ii) the Securities will not be
subject to any right, charge, security interest, lien or claim
of any kind in favor of the foreign subcustodian or its
creditors (except any claim for payment for the services
provided by such subcustodian and any related expenses;
provided, however that the Custodian shall use its best efforts
promptly to release any such right, charge, security interest,
lien or claim on the assets, except to the extent such right,
charge, security interest, lien or claim arises with respect to
a special request or requirement by the Fund for services the
cost of which and the expenses incurred in connection with which
the Fund has not paid or has declined to pay, it being agreed
and understood that, in the ordinary course, all payments for
usual and routine services rendered and expenses incurred by a
subcustodian shall be the obligation of the custodian); (iii)
beneficial ownership of the Securities will be freely
transferable without payment of money or value other than for
safe custody or administration; (iv) adequate records will be
maintained identifying the Securities as belonging to the Fund;
(v) the Custodian's independent public accountants will be given
access to those records or the confirmation of the contents of
those records; and (vi) the Custodian will receive periodic
reports with respect to the safekeeping of the Securities,
including, but not necessarily limited to, notification of any
transfer to or from the Account.
(b) In addition to the indemnities included in Section 13 hereof, the
Custodian agrees to indemnify and hold harmless the Fund from
any and all loss or damage incurred or suffered by the Fund as a
result of placement by the Custodian of Securities with a
foreign subcustodian hereunder, to the extent the Custodian
receives indemnification from such foreign subcustodian pursuant
to part (a)(i) of this section.
(c) With respect to any Securities to be placed with foreign
subcustodians pursuant to this section, the Custodian represents and
warrants that during the term of this Agreement it
will carry Bankers Blanket Bond or similar insurance for losses
incurred as a result of such sub-custodial arrangements.
(d) The Fund authorizes the Custodian to release any and all information
regarding Securities placed with foreign subcustodians hereunder as
may be required by court order of a court of competent jurisdiction.
Section 7. TRANSFER, EXCHANGE AND REDELIVERY OF SECURITIES.
The Custodian (or a subcustodian or any other agent of the Custodian) shall
have sole power to release or deliver any Securities of the Fund held by
the Custodian (or such subcustodian or agent) pursuant to this Agreement.
The custodian agrees (and will obtain an undertaking from each subcustodian
or other agent) that Securities held by the Custodian (or by a subcustodian
or other agent of the Custodian) will be transferred, exchanged or
delivered only
(a) for sales of Securities for the account of the Fund in accordance
with (i) "New York Street Practice", (ii) predominant established
practice in the relevant local market, or (iii) specific instructions
from the Fund; or
(b) when Securities are called, redeemed or retired or otherwise become
payable;
(c) for examination by any broker selling any such Securities in
accordance with "street delivery" custom or other relevant local
market practice;
(d) in exchange for or upon conversion into other Securities whether
pursuant to any plan of 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 pursuant to their terms;
(g) for the purpose of exchanging interim receipts or temporary
Securities for definitive Securities;
(h) for the purpose of tendering Securities;
(i) for the purpose of delivering Securities lent by the Fund;
(j) for purposes of delivering collateral upon redelivery of Securities
lent or for purposes of delivering excess collateral; or
(k) for other proper Fund purposes.
As to any deliveries made by Custodian pursuant to items (b), (d), (e),
(f), (g), (i), (j) and (k), Securities in exchange therefor shall be
deliverable to the Custodian (or a subcustodian or other agent of the
Custodian). The Custodian may rely upon any written, electronic or oral
instructions or an Officers' Certificate relating thereto as provided for
in Sections 3 and 4 above.
Section 8. THE CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS.
Unless and until the Custodian receives instructions to the contrary, the
Custodian (or a subcustodian or other agent of the 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 in the Account;
(b) collect interest and cash dividends and other distributions, provide
notice to the Fund of receipts, and deposit to the Account;
(c) hold for the account of the Fund all stock dividends, rights and
similar Securities issued with respect to any Securities held by the
Custodian under the terms of this Agreement;
(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, the laws of any
State or territory of the United States, or, in the case of
Securities held through foreign subcustodians, the laws of the
jurisdiction in which such Securities are held, 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;
(e) use its best efforts, in cooperation with the Fund, to file such
forms, certificates and other documents as may be required to comply
with all applicable laws and regulations relating to withholding
taxation applicable to the Securities; and
(f) use its best efforts to assist the Fund in obtaining any refund of
local taxes to which the Fund may have a reasonable claim.
The Fund agrees to furnish to the Custodian such information and to execute
such forms and other documents as the Custodian may reasonably request or
as otherwise may be reasonably necessary in connection with the Custodian's
performance of its obligations under clauses (e) and (f).
Section 9. REGISTRATION OF SECURITIES.
Except as otherwise directed by an Officers' Certificate, the Custodian
shall register all Securities, except such as are in bearer form, in the
name of the Fund or a registered nominee of the Fund or a registered
nominee of the Custodian or a subcustodian. Securities deposited with DTC
or a foreign securities depository permitted under Section 5 may be
registered in the nominee name of DTC or such foreign securities
depository. The Custodian shall execute and deliver all such certificates
in connection therewith as may be required by the applicable provisions of
the Internal Revenue Code, the laws of any State or territory of the United
States, or, in the case of Securities placed with foreign subcustodians,
the laws of the jurisdiction in which such Securities are held. The
Custodian shall maintain such books and records as may be necessary to
identify the specific Securities held by it hereunder at all times.
The Fund shall from time to time furnish the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee, any
Securities which it may hold for the account of the Fund and which may from
time to time be registered in the name of the Fund.
Section 10. VOTING AND OTHER ACTION.
Neither the Custodian nor any nominee of the Custodian or of DTC shall vote
any of the Securities held hereunder by or for the account of the Fund
except in accordance with the instructions contained in an Officers'
Certificate.
The Custodian shall deliver or have delivered to the Fund all notices,
proxies and proxy soliciting materials with relation to such Securities,
such proxies to be executed by the registered holder of such Securities (if
registered otherwise than in the name of the Fund), but without indicating
the manner in which such proxies are to be voted.
With respect to Securities deposited with DTC or any other depository,
including a foreign subcustodian, as provided for in Section 6 hereof,
where such Securities may be registered in the nominee name of DTC, or
other such depository the Custodian shall request that the nominee shall
not vote any of such deposited Securities or execute any proxy to vote
thereon or give any consent or take any other action with respect thereto
unless instructed to do so by the Custodian following receipt by the
Custodian of an Officers' Certificate.
Section 11. TRANSFER TAX AND OTHER DISBURSEMENTS.
The Fund shall pay or reimburse the Custodian from time to time for any
transfer taxes payable upon transfers of Securities made hereunder and for
all other necessary and proper disbursements and expenses made or incurred
by the Custodian in the performance of this Agreement, as required by U. S.
law or the laws of the jurisdiction in which the Securities are held, as
the case may be.
The 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 laws of any jurisdiction to exempt from taxation any
exemptible transfers and/or deliveries of any such Securities.
Section 12. COMPENSATION AND THE CUSTODIAN'S EXPENSES.
The Custodian shall be paid as compensation for its services pursuant to
this Agreement such compensation as may from time to time be agreed upon in
writing between the two parties.
Section 13. INDEMNIFICATION.
The Fund agrees to indemnify and hold harmless the Custodian and its
employees, agents and nominee from all taxes, charges, expenses,
assessments, claims and liabilities (including attorneys' fees) incurred or
assessed against them in connection with the performance of the Agreement,
except such as may arise from their own grossly negligent action, negligent
failure to act or willful misconduct. The Custodian agrees to indemnify
and hold harmless the Fund and its trustees, officers, employees, and
agents from all taxes, charges, expenses, assessments, claims and
liabilities (including attorneys fees) incurred or assessed against the
Fund in connection with the performance of the Agreement, which may arise
from grossly negligent action, grossly negligent failure to act or willful
misconduct on the part of the Custodian. In the event of any advance of
cash for any purpose made by the Custodian resulting from orders or
instructions of the Fund, or in the event that the 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 its or its nominee's own grossly negligent
action, grossly negligent failure to act or willful misconduct, any
property at any time held for the account of the Fund shall be security
therefor.
Within a reasonable time after receipt by an indemnified party of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party, notify in
writing the indemnifying party of the commencement thereof; and the
omission so to notify the indemnifying party will not relieve it from any
liability hereunder as to the particular item for which indemnification is
then being sought, unless such omission is a result of the failure to
exercise reasonable care on the part of the indemnified party. In case any
such action is brought against an indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to assume the defense thereof, with
counsel who shall be to the reasonable satisfaction of such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation. Any such
indemnifying party shall not be liable to any such indemnified party on
account of any settlement of any claim or action effected without the
consent of such indemnifying party.
Section 14. REPORTS BY THE CUSTODIAN.
The Custodian shall furnish the Fund daily with a statement of all
transactions and entries for the Account of the Fund. The Custodian shall
furnish the Fund with such reports covering Securities held by it or under
its control as may be agreed upon from time to time. The books and records
of the Custodian pertaining to its actions under this Agreement shall be
open to inspection and audit at reasonable times and upon reasonable notice
to the Fund. All such books and records shall be the property of the Fund
(and such other persons as the Fund may designate from time to time) and
the Custodian shall forthwith upon the Fund's request, turn over to the
Fund and cease to retain in its files, records and documents created and
maintained by the Custodian pursuant to this Agreement, which are no longer
needed by the Custodian in performance of its services or for its
protection.
Section 15. TERMINATION AND ASSIGNMENT.
This agreement may be terminated by the Fund or the custodian, immediately
upon written notice from the Fund or the Custodian, as applicable, to the
other party, if the other party fails materially to perform its obligations
hereunder, and may otherwise be terminated by the Fund or by the Custodian
on ninety (90) days' notice, given in writing and sent by registered mail
to the Custodian or the Fund as the case may be. Upon termination of this
Agreement, the Custodian shall deliver the Securities and cash in the
account of the Fund to such entity as is designated in writing by the Fund
and in the absence of such a designation may, but shall not be obligated
to, deliver them to a bank or trust company of the Custodian's own
selection having an aggregate capital, surplus and undivided profits as
shown by its last published report of not less than 50 million dollars
($50,000,000), the Securities and cash to be held by such bank or trust
company for the benefit of the Fund under terms similar to those of this
Agreement and the Fund to be obligated to pay to such transferee the then
currents of such transferee for services rendered by it; provided, however,
that the Custodian may decline to transfer such amount of such Securities
equivalent to all fees and other sums owing by the Fund to the Custodian,
and the Custodian shall have a charge against and security interest in such
amount until all monies owing to it have been paid, or escrowed to its
satisfaction.
This Agreement may not be assigned by the Custodian without the consent of
the Fund, authorized or approved by a resolution of the Fund's Board of
Trustees.
Section 16. FORCE MAJEURE.
The Custodian shall not be liable or accountable for any loss or damage
resulting from any condition or event beyond its reasonable control;
provided, however, that the Custodian shall promptly use its best efforts
to mitigate any such loss or damage to the Fund as a result of any such
condition or event. For the purposes of the foregoing, the actions or
inactions of the
Custodian's subcustodians and other agents shall not be deemed to be beyond
the reasonable control of the Custodian. In connection with the foregoing,
the Custodian agrees (and agrees that it will use its best efforts to
obtain the undertaking of its subcustodians and other agents to the effect)
that the Custodian (and/or such subcustodian or agent) shall maintain such
alternate power sources for computer and related systems and alternate
channels for electronic communication with such computers and related
systems that the failure of the primary power source and/or communications
channel of the Custodian (and/or its subcustodians or other agents) will
not foreseeably result in any loss or damage to the Fund.
Section 17. THIRD PARTIES.
This Agreement shall be binding upon and the benefits hereof shall insure
to the parties hereto and their respective successors and assigns.
However, nothing in this Agreement shall give or be construed to give or
confer upon any third party any rights hereunder.
Section 18. AMENDMENTS.
The terms of this Agreement shall not be waived, altered, modified,
amended, supplemented or terminated in any manner whatsoever, except by
written instrument signed by both of the parties hereto.
Section 19. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the laws
of The Commonwealth of Massachusetts.
Section 20. COUNTERPARTS.
This agreement may be executed in several counterparts, each of which is an
original.
Section 21. NOTICES.
All notices provided for herein shall be in writing and shall become
effective when deposited in the United States mail, postage prepaid and
certified, addressed
(a) if to the Custodian, at 000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Worldwide Custody - MS: 45-02-16
(b) if to the Fund, at
----------------------------
----------------------------
Attention:
----------------------------
or to such other address as either party may notify the other in writing.
A copy of the Incorporation of the Fund is on file with the Delaware Secretary
of State, and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Fund as Trustees, and the obligations of this instrument
are not binding upon any of the Trustees, officers, or shareholders of the Fund
individually but binding only upon assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
written above.
CRM SMALL CAP VALUE FUND
By: /s/ Max Berueffy
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Name: Max Berueffy
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx Xxxxxxx, Xx.
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Name: Xxxxxxx Xxxxxxx, Xx.
Title: Administration Manager
