Exhibit (8)(c)
CUSTODY AGREEMENT
This Custody Agreement is dated June 18, 1993, 1993 between XXXXXX XXXXXXX
TRUST COMPANY, a New York State chartered trust company (the "Custodian"), and
Norwest Bank Minnesota, N.A. (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 one or more
accounts (the "Accounts") in the name of the Client. The Custodian shall record
in the Accounts 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:
(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 Accounts 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 Accounts;
(d) upon a request of the Client that monies be exchanged for or
used to purchase monies denominated in a different currency;
(e) as provided in Sections 8 and 12 hereof;
(f) upon termination of this Custody Agreement as hereinafter set
forth; and
(g) for any other purpose upon receipt of Authorized Instructions
(as hereinafter defined).
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. In the event that it is not possible to make a payment in
accordance with Authorized Instructions, 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 will 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 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 Authorized Instructions.
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. 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 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 Accounts; (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 Accounts, 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
pursuant to the Procedures Manual or otherwise 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, provided, however, that the Client shall
not be liable for any such liability incurred as a result of the negligence or
willful miconduct of the Custodian or a Subcustodian. 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. Unless the Client and the Custodian otherwise agree, all cash
received by the Custodian for the Accounts shall be placed in deposit accounts
maintained by the Custodian for the benefit of its customers with Subcustodians
or other domestic or foreign deposit taking institutions identified to the
Client. The Client understands that such deposit accounts may not be accompanied
by the benefit of any governmental insurance. If the Custodian and the Client
have agreed in writing in advance that certain cash in the Accounts shall bear
interest, the Custodian shall be responsible for crediting the Accounts with
interest on such cash at the rates and times as agreed between the Client and
the Custodian from time to time and such rates may be greater than or less than
the rates paid on deposits by the applicable deposit taking institution. Any
difference between the interest so paid to the Client and the interest so paid
by the Subcustodians and other deposit taking institutions shall be for the
account of the Custodian.
12. From time to time, the Custodian may extend or arrange 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 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 Accounts or any Property held therein. The Custodian is and any
Subcustodians are authorized to charge the Accounts 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.
16. This Agreement may be terminated by the Client or the Custodian by
60 days written notice to the other, sent by registered mail. If notice of
termination is given, the Client shall, within 30 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 Accounts.
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.
[Norwest Bank Minnesota, N.A.]
By \S\ XXXXXXX X. XXXX
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP Trust Asset Services
Address for record:
000 Xxxxxxxxx Xxx.
Xxxxxxxxxxx, XX 00000-0000
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By \S\ XXXXXX XXXXXXX
------------------------------------
Xxxxxx Xxxxxxx
Authorized Signature
AMENDMENT TO CUSTODY AGREEMENT
BETWEEN
XXXXXX XXXXXXX TRUST COMPANY
AND
NORWEST BANK MINNESOTA, N.A.
DATED JUNE 18, 1993
This Amendment, dated as of April 1, 1996, amends the custody agreement
dated June 18, 1993 ("Custody Agreement") between Xxxxxx Xxxxxxx Trust Company
("Custodian") and Norwest Bank Minnesota, N.A. ("Client").
Intending to be legally bound, the parties hereby agree as follows, with respect
to Account Nos. 412718 and 412726 (separate accounts established on the
Custodian's books and records for two customers of the Client):
1. The second and third sentences of Article 1 of the Custody Agreement
shall be deleted and replaced in their entirety with the following:
"The Client instructs the Custodian to establish on the books and
records of the Custodian one or more accounts ("the Accounts") in the
name of the Client, one or more of which shall be for the benefit of
Account No. 412718 and one or more of which shall be for the benefit of
Account No. 412726. The Custodian shall record in the Accounts 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 for
the benefit of each customer."
2. The following sentence shall be inserted in Article 1 of the Custody
Agreement immediately after the third sentence:
"The Client shall cause to be delivered to the Accounts only customer
assets and the Custodian shall maintain in the Accounts only these assets and
none of its proprietary assets."
3. The last sentence of Article 1 of the Custody Agreement shall be
deleted and replaced in its entirety with the following:
"The Client acknowledges that, to the extent not inconsistent with the
terms of the Custody Agreement, the Procedures Manual constitutes an integral
part of this Agreement."
4. The last sentence of Article 2 of the Custody Agreement shall be
deleted and replaced in its entirety with the following:
"Except as provided in the previous sentence, the Custodian shall be
liable for losses incurred by the Client in respect of Property held by
a Subcustodian to the extent such loss is caused by the negligence or
willful misconduct of any Subcustodian."
5. The first sentence of Article 3(a) of the Custody Agreement shall be deleted
and replaced in its entirety with the following:
"The Custodian will identify on its books as belonging to the Client
for the benefit of its customers any Property held by a Subcustodian for the
Custodian's account:"
6. The fourth sentence of Article 12shall be deleted and replaced in its
entirety with the following:
"In addition to any other remedies available, the Custodian shall be
entitled to a right of set-off against the Property in the particular
Account that caused the extension of credit to satisfy the repayment of
such credit extensions and the payment of accrued interest thereon."
7. This Amendment may not be modified except by a writing signed by both parties
hereto.
8. This Amendment may be signed in counterparts which, when taken together as a
whole, shall constitute a single agreement.
9. All other provisions of the Custody Agreement shall remain in full force and
effect.
10. This Amendment 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.
NORWEST BANK MINNESOTA, N.A.
By:_\S\ XXXXXXXXX DUBANOWSKI____
Name: Jeabbette Dubanowski
Title: Trust Officer
XXXXXX XXXXXXX TRUST COMPANY
By:_\S\ XXXX FEDERICO_______________
Name: Xxxx Xxxxxxxx
Title: Principal
