EXHIBIT 8
CUSTODIAN AGREEMENT
THIS AGREEMENT made on _______________________, 1997 between Security
Capital Employee REIT Fund Incorporated; a Maryland Corporation (hereinafter
called the ("Fund"), and FIRSTAR TRUST COMPANY, a corporation organized under
the laws of the State of Wisconsin (hereinafter called the"Custodian"),
WHEREAS, the Fund desires that its securities and cash shall be
hereafter held and administered by the Custodian pursuant to the terms of this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Fund and Custodian agree as follows:
1. Definitions
The word "securities" as used herein includes stocks, shares, bonds,
debentures, notes, mortgages 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.
The words "officers' certificate" shall mean a request or direction or
certification in writing signed in the name of the Fund by any two of the
President, a Vice President, the Secretary and the Treasurer of the Fund, or any
other persons duly authorized to sign by the Board of Directors of the Fund.
The word "Board" shall mean Board of Directors of the Fund.
2. Names, Titles, and Signatures of the Fund's Officers
An officer of the Fund will certify to the Custodian the names and
signatures of those persons authorized to sign the officers' certificates
described in Section 1 hereof, and the names of the members of the Board of
Directors of the Fund, together with any changes which may occur from time to
time.
3. Additional Classes
The Fund is authorized to issue separate classes of shares of stock
representing interests in separate investment portfolios. The parties intend
that each portfolio established by the Fund, now or in the future, be covered by
the terms and conditions of this Agreement.
4. Receipt and Disbursement of Money
A. The Custodian shall open and maintain a separate account or accounts
in the name of the Fund, subject only to draft or order by the Custodian acting
pursuant to the terms of this
Agreement. Custodian shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of the Fund.
Custodian shall make payments of cash to, or for the account of, the Fund from
such cash only:
(a) for the purchase of securities for the portfolio of the Fund upon
the delivery of such securities to the Custodian, registered in
the name of the Funds or of the nominee of Custodian referred to
in Section 7 or in proper form for transfer;
(b) for the purchase or redemption of shares of the common stock of
the Fund upon delivery thereof to the Custodian, or upon proper
instructions from the Fund;
(c) for the payment of interest, dividends, taxes, investment
adviser's fees or operating expenses (including, without
limitation thereto, fees for legal, accounting, auditing and
custodian services and expenses for printing and postage);
(d) for payments in connection with the conversion, exchange or
surrender of securities owned or subscribed to by the Fund held
by or to be delivered to the Custodian; or
(e) for other proper corporate purposes certified by resolution of
the Board of Directors of the Funds.
Before making any such payment, the Custodian shall receive (and may
rely upon) an officers' certificate requesting such payment and stating that it
is for a purpose permitted under the terms of items (a), (b), (c), or (d) of
this Subsection A, and also, in respect of item (e), upon receipt of an
officers' certificate specifying the amount of such payment, setting forth the
purpose for which such payment is to be made, declaring such purpose to be a
proper corporate purpose, and naming the person or persons to whom such payment
is to be made, provided, however, that an officers' certificate need not precede
the disbursement of cash for the purpose of purchasing a money market
instrument, or any other security with same or next-day settlement, if the
President, a Vice President, the Secretary or the Treasurer of the Fund issues
appropriate oral or facsimile instructions to the Custodian and an appropriate
officers' certificate is received by the Custodian within two business days
thereafter.
B. The Custodian is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received by Custodian for the
account of the Fund.
C. The Custodian shall, upon receipt of proper instructions, make
federal funds available to the Fund as of specified times agreed upon from time
to time by the Fund and the Custodian in the amount of checks received in
payment for shares of the Fund which are deposited into the Fund's account.
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5. Segregated Accounts
Upon receipt of proper instructions, the Custodian shall establish and
maintain segregated account for and on behalf of the portfolio, into which
account may be transferred cash and/or securities.
6. Transfer, Exchange, Redelivery, etc. of Securities
The Custodian shall have sole power to release or deliver any securities
of the Fund held by it pursuant to this Agreement. The Custodian agrees to
transfer, exchange or deliver securities held by it hereunder only:
(a) for sales of such securities for the account of the Fund upon
receipt by the Custodian of payment therefor;
(b) when such 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;
(d) in exchange for, or upon conversion into, other securities alone or
other securities and cash 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;
(g) for the purpose of exchanging interim receipts or temporary
securities for definitive securities;
(h) for the purpose of redeeming in kind shares of common stock of the
Fund upon delivery thereof to the Custodian; or
(i) for other proper corporate purposes.
As to any deliveries made by the Custodian pursuant to items (a), (b),
(d), (e), (f), and (g), securities or cash receivable in exchange therefor shall
be deliverable to the Custodian.
Before making any such transfer, exchange or delivery, the Custodian
shall receive (and may rely upon) an officers' certificate requesting such
transfer, exchange or delivery, and stating that it is for a purpose permitted
under the terms of items (a), (b), (c), (d), (e), (f), (g), or (h) of this
Section 6 and also, in respect of item (i), upon receipt of an officers'
certificate specifying the securities to be delivered, setting forth the purpose
for which such delivery is to be made,
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declaring such purpose to be a proper corporate purpose, and naming the person
or persons to whom delivery of such securities shall be made, provided, however,
that an officers' certificate need not precede any such transfer, exchange or
delivery of a money market instrument, or any other security with same or next-
day settlement, if the President, a Vice President, the Secretary or the
Treasurer of the Fund issues appropriate oral or facsimile instructions to the
Custodian and an appropriate officers' certificate is received by the Custodian
within two business days thereafter.
7. Custodian's Acts Without Instructions
Unless and until the Custodian receives an officers' certificate to the
contrary, 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 for the account
of the Fund; (b) collect interest and cash dividends received, with notice to
the Fund, for the account of the Fund; (c) hold for the account of the Fund
hereunder all stock dividends, rights and similar securities issued with respect
to any securities held by it hereunder; and (d) execute, as agent on behalf of
the Fund, all necessary ownership certificates required by the Internal Revenue
Code of 1986, as amended ( the "Internal Revenue Code") or the regulations of
the United States Treasury Department issued thereunder or under the laws of any
state now or hereafter in effect, inserting the Fund name on such certificates
as the owner of the securities covered thereby, to the extent it may lawfully do
so.
8. 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
a registered nominee of the Custodian as defined in the Internal Revenue Code
and any Regulations of the Treasury Department issued thereunder or in any
provision of any subsequent federal tax law exempting such transaction from
liability for stock transfer taxes, and shall execute and deliver all such
certificates in connection therewith as may be required by such laws or
regulations or under the laws of any state. The Custodian shall use its best
efforts to the end that the specific securities held by it hereunder shall be at
all times identifiable in its records.
The Fund shall from time to time furnish to 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.
9. Voting and Other Action
Neither the Custodian nor any nominee of the Custodian 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 cause to be executed and 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
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registered otherwise than in the name of the Fund), but without indicating the
manner in which such proxies are to be voted.
10. 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 reasonable, necessary and proper disbursements and expenses made or
incurred by the Custodian in the performance of this Agreement.
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 provisions of the Internal Revenue Code and any regulations of the
Treasury Department issued thereunder, or under the laws of any state, to exempt
from taxation any exemptable transfers and/or deliveries of any such securities.
11. Concerning the Custodian
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. Until modified in writing, such compensation
shall be as set forth in Exhibit A attached hereto.
The Custodian shall not be liable for any action taken in good faith
upon any certificate herein described or certified copy of any resolution of the
Fund's Board of Directors, and may rely on the genuineness of any such document
which it may in good faith believe to have been validly executed.
The Fund agrees to indemnify and hold harmless the Custodian and its
nominee from all taxes, charges, expenses, assessments, claims and liabilities
(including reasonable counsel fees) incurred or assessed against it or by its
nominee in connection with the performance of this Agreement, except such as may
arise from its or its nominee's own negligent action, negligent failure to act,
bad faith or willful misconduct. The Custodian is authorized to charge any
account of the Fund for such items.
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
negligent action, negligent failure to act or willful misconduct, any property
at any time held for the account of the Fund shall be security therefore.
The Custodian agrees to indemnify and hold harmless the Fund from all charges,
expenses, assessments, and claims/liabilities (including reasonable counsel
fees) incurred or assessed against it in connection with the performance of this
Agreement, except such as may arise from the Fund's own negligent action,
negligent failure to act, or willful misconduct.
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12. Subcustodians
The Custodian is hereby authorized to engage another bank or trust
company as (a" Subcustodian") for all or any part of the Fund's assets, so long
as any such bank or trust company is a bank or trust company organized under the
laws of any state of the United States, having an aggregate capital, surplus and
undivided profit, as shown by its last published report, of not less than Two
Million Dollars ($2,000,000) and provided further that, if the Custodian
utilizes the services of a Subcustodian, the Custodian shall remain fully liable
and responsible for any losses caused to the Fund by the Subcustodian as fully
as if the Custodian was directly responsible for any such losses under the terms
of this Agreement.
Notwithstanding anything contained herein, if the Fund requires the
Custodian to engage specific Subcustodians for the safekeeping and/or clearing
of assets, the Fund agrees to indemnify and hold harmless the Custodian from all
claims, expenses and liabilities incurred or assessed against it in connection
with the use of such Subcustodians in regard to the Fund's assets, except as may
arise from its own negligent action, negligent failure to act, bad faith or
willful misconduct.
13. Reports by the Custodian
The Custodian shall furnish the Fund periodically as agreed upon with a
statement summarizing all transactions and entries for the account of the Fund.
The Custodian shall furnish to the Fund, at the end of every month, a list of
the portfolio securities showing the aggregate cost of each issue. The books and
records of the Custodian pertaining to its actions under this Agreement shall be
open to inspection and audit at reasonable times by officers of, and of auditors
employed by, the Fund.
14. Termination or Assignment
This Agreement may be terminated by the Fund, or by the Custodian, on
sixty (60) days notice, given in writing and sent by registered mail to
Custodian at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to the Fund at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the case may be. Upon any
termination of this Agreement, pending appointment of a successor to the
Custodian or a vote of the shareholders of the Fund to dissolve or to function
without a custodian of its cash, securities and other property, the Custodian
shall not deliver cash, securities or other property of the Fund to the Fund,
but may deliver them to a bank or trust company of its own selection, having an
aggregate capital, surplus and undivided profits, as shown by its last published
report of not less than Two Million Dollars ($2,000,000) as a custodian for the
Fund to be held under terms similar to those of this Agreement, provided,
however, that Custodian shall not be required to make any such delivery or
payment until full payment shall have been made by the Fund of all liabilities
constituting a charge on or against the properties then held by the Custodian or
on or against the Custodian, and until full payment shall have been made to the
Custodian of all
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its fees, compensation, costs and expenses, subject to the provisions of Section
10 of this Agreement.
This Agreement may not be assigned by the Custodian without the consent
of the Fund, authorized or approved by a resolution of its Board of Directors.
15. Deposits of Securities in Securities Depositories
No provision of this Agreement shall be deemed to prevent the use by the
Custodian of a central securities clearing agency or securities depository,
provided, however, that the Custodian and the central securities clearing agency
or securities depository meet all applicable federal and state laws and
regulations, and the Board of Directors of the Fund approves by resolution the
use of such central securities clearing agency or securities depository.
16. Records
To the extent that the Custodian in any capacity prepares or maintains
any records required to be maintained and preserved by the Fund pursuant to the
provisions of the 1940 Act or the rules and regulations promulgated thereunder,
the Custodian agrees to make any such records available to the Fund upon request
and to preserve such records for the periods prescribed in Rule 31a-2 under the
1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above-written by their respective officers
thereunto duly authorized.
Executed in several counterparts, each of which is an original.
Security Capital Employee Firstar Trust Company
REIT Fund Incorporated
By: By:
--------------------- ---------------------
Vice President
Attest:
By:
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Assistant Secretary
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