EXHIBIT 99 (j)
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this 10th day of September, 1998
(the "Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Custodian"), and NAB Exchangeable Preferred Trust (such trust
and the trustees thereof acting in their capacities as such being referred to
herein as the "Trust"), a business trust created pursuant to the Business Trust
Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12
Del. C. (Sections 3801 et seq.)), and governed by an Amended and Restated Trust
Agreement by and among ML IBK Positions, Inc., as sponsor, Xxxxx X. Xxxxxx, as
depositor, the Trustees named therein and the Holders from time to time, to be
dated as of September 10, 1998 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"), created for the purposes of issuing
Trust Units Exchangeable for Preference Shares-SM- (the "TrUEPrS-SM-") in
accordance with the terms and conditions of the Trust Agreement and investing
the net proceeds thereof in and holding Mandatorily Redeemable Debt
Securities due 2047 (the "Debt Securities") issued by Cuzzano (UK) Company, a
special purpose limited liability company incorporated under the laws of, and
domiciled in, the United Kingdom (the "U.K. Company");
WHEREAS, the Trust desires to engage the services of the Custodian to
assume certain responsibilities and to perform certain custodial duties for the
Trust; and
WHEREAS, the Custodian is qualified and willing to assume such
responsibilities and to perform such duties, subject to the supervision of the
Trust, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the respective meanings specified in the Trust Agreement.
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-SM-Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
2. APPOINTMENT OF CUSTODIAN; TRANSFER OF ASSETS. The Trust hereby
constitutes and appoints the Custodian, and the Custodian accepts such
appointment, to act as agent of the Trust and as custodian of all of the
property at any time owned or held by the Trust, including but not limited to,
the Debt Securities, any cash and any other property at any time owned or held
by the Trust (collectively, the "Assets") on the terms and subject to the
conditions set forth in this Agreement. The Custodian acknowledges and agrees
that in its capacity as Custodian it will hold the Debt Securities as common
depositary to Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System and Cedel Bank, societe anonyme ("Cedel"). The
Trust hereby deposits the Assets as of the date hereof with the Custodian and
the Custodian hereby accepts such into its custody, and the Trust shall deliver
to the Custodian all of the Assets, including all monies, securities and other
property received by the Trust at any time during the period of this Agreement,
subject to the following terms and conditions. The Custodian hereby agrees that
it shall hold the Assets in a segregated custody account, separate and distinct
from all other accounts, in accordance with Section 17(f) of, and in such manner
as shall constitute the segregation and holding in trust within the meaning of,
the Investment Company Act and the rules and regulations thereunder. The Trust
authorizes the Custodian, for any Assets held hereunder, to use the services of
any United States securities depository permitted to perform such services for
registered investment companies and their custodians under Rule 17f-4 under the
Investment Company Act and which has been approved by the Trust, including but
not limited to, The Depository Trust Company, the Federal Reserve Book Entry
System, Euroclear and Cedel. The Custodian shall be under no duty or obligation
to inspect, review or examine any Assets to determine that they are genuine,
enforceable, or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
3. ASSET DISPOSITION; EXAMINATIONS. The Custodian shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose of the
Assets, except pursuant to a written direction in accordance with Section 4
below and then only for the account of the Trust. The Assets shall not be
subject to any lien, security interest, encumbrance, right of set-off or charge
of any kind in favor of the Custodian for itself or for any other Person
claiming through the Custodian. The Custodian shall permit actual examination
of the Assets by the Trust's independent public accountant at the end of each
annual and semi-annual fiscal period of the Trust and at least one other time
during the fiscal year of the Trust chosen by such independent public accountant
and shall permit the inspection of the Assets by the Commission through its
employees or agents during the normal business hours of the Custodian upon
reasonable request.
4. AUTHORIZED ACTIONS. The Custodian shall take such reasonable
actions with respect to the Assets as directed in writing by the Trust or by any
officer of the Administrator duly authorized by the Trustees to give written
instructions on behalf of the Trust and named in such certified resolutions of
the Trustees, as may be received by the Custodian from time to time.
5. CUSTODIAN'S ACTIONS TAKEN IN GOOD FAITH. In connection with the
performance of its duties under this Agreement, the Custodian shall have no
duties or obligations other than those specifically set forth herein or in the
Trust Agreement or as may subsequently be agreed in writing by the parties
hereto and shall be under no liability to the Trust or any Holder for any action
taken in good faith in reliance on any paper, order, certification, list,
demand,
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request, consent, affidavit, notice, opinion, direction, endorsement,
assignment, resolution, draft or other document, prima facie properly
executed by or on behalf of the Trust, or for the disposition of the Assets
pursuant to the Trust Agreement or in respect of any action taken or suffered
under the Trust Agreement in good faith, in accordance with an opinion of
counsel or at the direction of the Trust pursuant hereto; provided that this
provision shall not protect the Custodian against any liability to which it
would otherwise be subject by reason of its willful misfeasance, bad faith or
gross negligence in the performance of its duties, or its reckless disregard
of its obligations and duties hereunder.
Notwithstanding any other provision of this Agreement, the Custodian
shall under no circumstances be liable for any punitive, exemplary, indirect or
consequential damages.
6. TRUST AGREEMENT VALIDITY. The Custodian shall not be responsible
for the validity or sufficiency of the Trust Agreement or the due execution
thereof, or for the form, character, genuineness, sufficiency, value or validity
of any of the Assets and the Custodian shall in no event assume or incur any
liability, duty or obligation to any Holder or to the Trust, other than as
expressly provided for herein. The Custodian shall not be responsible for or in
respect of the validity of any signature by or on behalf of the Trust.
7. LITIGATION OBLIGATIONS, COSTS AND INDEMNITY. The Custodian shall
not be under any obligation to appear in, prosecute or defend any action which
in its opinion may involve it in expense or liability, unless it shall be
furnished with such reasonable security and indemnity against such expense or
liability as it may require, and any reasonable pecuniary costs of the Custodian
from such actions shall be expenses which are reimbursable pursuant to Section
13 hereof.
8. TAXES; TRUST EXPENSES. In no event shall the Custodian be
personally liable for any taxes or other governmental charges imposed upon or in
respect of the Assets or upon the monies, securities or other properties
included therein. The Custodian shall be reimbursed and indemnified by the
Trust for all such taxes and charges, for any tax or charge imposed against the
Trust and for any reasonable expenses, including reasonable counsel fees,
interest, penalties and additions to tax which the Custodian may sustain or
incur with respect to such taxes or charges.
9. CUSTODIAN RESIGNATION, SUCCESSION. (a) The Custodian may
resign by executing an instrument in writing resigning as Custodian and
delivering the same to the Trust, not less than 60 days before the date
specified in such instrument when, subject to subsection (b) of this Section
9, such resignation is to take effect. Upon receiving such notice of
resignation, the Trust shall use its reasonable efforts promptly to appoint a
successor Custodian in the manner and meeting the qualifications provided in
the Trust Agreement, by written instrument or instruments delivered to the
resigning Custodian and the successor Custodian.
(b) In case no successor Custodian shall have been appointed within 30
days after notice of resignation has been received by the Trust, the resigning
Custodian may forthwith apply to a court of competent jurisdiction for the
appointment of a successor Custodian.
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Such court may thereupon, after such notice, if any, as it may deem proper
and prescribed, appoint a successor Custodian.
10. CUSTODIAN REMOVAL. The Trust may remove the Custodian upon 60
days prior written notice to the Custodian and appoint a successor Custodian.
In case at any time the Custodian shall not meet the requirements set forth in
the Trust Agreement or shall become incapable of acting or if a court having
jurisdiction shall enter a decree or order for relief in respect of the
Custodian in an involuntary case, or the Custodian shall commence a voluntary
case, under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or any receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) for the Custodian or for any substantial part
of its property shall be appointed, or the Custodian shall make any general
assignment for the benefit of creditors, or shall generally fail to pay its
debts as they become due, the Trust may remove the Custodian immediately and
appoint a successor Custodian. The termination of the Administration Agreement
or the Paying Agent Agreement shall cause the removal of the Custodian
simultaneously therewith.
11. TRANSFERS TO SUCCESSOR CUSTODIAN. Upon the request of any
successor Custodian, the Custodian hereunder shall, upon payment of all amounts
due it, execute and deliver an instrument acknowledged by it transferring to
such successor Custodian all the rights and powers of the resigning Custodian;
and the resigning Custodian shall transfer, deliver and pay over to the
successor Custodian the Assets at the time held by it hereunder, if any,
together with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such of the
records or copies thereof maintained by the resigning Custodian in the
administration hereof as may be requested by the successor Custodian, and shall
thereupon be discharged from all duties and responsibilities hereunder. Any
resignation or removal of the Custodian shall become effective upon such
acceptance of appointment by the successor Custodian. The indemnification of
the resigning Custodian provided for hereunder shall survive any resignation,
discharge or removal of the Custodian hereunder.
12. CUSTODIAN MERGER, CONSOLIDATION. Any corporation into which the
Custodian may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, shall be the successor Custodian hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto, provided
that such corporation meets the requirements set forth in the Trust Agreement.
13. COMPENSATION; EXPENSES. The Custodian shall receive compensation
for performing the usual, ordinary, normal and recurring services under this
Custodian Agreement and, with the prior written approval of the Trust,
reimbursement for any and all reasonable
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expenses and disbursements incurred hereunder, in each case as provided in
Section 3.1 of the Administration Agreement.
14. SECTION 17(f) QUALIFICATION. The Custodian hereby represents that
it is qualified to act as a custodian under Section 17(f) of the Investment
Company Act.
15. INDEMNIFICATION. The Trust shall, to the fullest extent
permitted by applicable law, indemnify and hold the Custodian harmless from
and against any loss, damages, liability or claim incurred by reason of any
inaccuracy in information furnished to the Custodian by the Trust, or any act
or omission in the course of, connected with or arising out of any services
to be rendered hereunder, and any reasonable cost or expense (including the
reasonable costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and
reasonable attorneys' fees and disbursements) incurred in connection with any
such loss, damages, liability or claim, provided that the Custodian shall not
be indemnified and held harmless from and against any such loss, damages,
liability, claim or reasonable cost or expense arising from its willful
misfeasance, bad faith or gross negligence in the performance of its duties,
or its reckless disregard of its duties and obligations hereunder.
Notwithstanding the foregoing, it is understood that (i) the Trust shall not,
in respect of the legal expenses of the Custodian in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel), (ii) the Trust shall not be liable for any settlement of any
proceeding effected without the prior written consent of the Trust, but if
settled with such consent or if there be a final judgment for the third party
claimant, the Trust agrees to indemnify the Custodian from and against any
loss or liability by reason of such settlement or judgment, (iii) the Trust
may not pay any amounts to the Custodian under this Section 15 from the Trust
Estate and (iv) the Trust shall not be liable for any loss, damages, cost,
liability or claim or any expense (including the reasonable costs of
investigation, preparation for and defense of legal and/or administrative
proceedings related to a claim against the Custodian and reasonable
attorneys' fees and disbursements) in an amount in excess of the amount
received by the Trust under the Trust Expense Agreement and the Expense and
Indemnity Agreement in connection with such loss, damages, cost, liability or
claim. Neither the Federal Reserve Book Entry System nor The Depository
Trust Company shall be deemed to be agents of the Custodian.
16. RIGHTS OF SET-OFF; BANKER'S LIEN. The Custodian hereby waives all
rights of set-off or banker's lien it may have with respect to the Assets held
by it as Custodian hereunder.
17. TERMINATION. This Agreement shall terminate upon the earlier of
the dissolution of the Trust or the appointment of a successor Custodian.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
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19. NOTICES. All notices and other communications given by any party
under this Agreement shall be directed as follows (or to such other address for
a particular party as shall be specified by such party in a like notice given
pursuant to this Section 19):
The Trust: NAB Exchangeable Preferred Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Custodian: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery in the United States to the
offices set forth above, in which case they shall be deemed received on the
first Business Day by which delivery shall have been made to said offices, (ii)
transmitted by any standard form of telecommunication to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which a standard confirmation that such transmission occurred is received by the
transmitting party (unless such confirmation states that such transmission
occurred after 5:00 P.M. on such first Business Day, in which case delivery
shall be deemed to have been received on the immediately succeeding Business
Day), or (iii) sent by certified or registered mail, return receipt requested to
the offices set forth above, in which case they shall be deemed received when
receipted for unless acknowledgment of receipt is refused (in which case
delivery shall be deemed to have been received on the first Business Day on
which such acknowledgment is refused). "Business Day" means each Monday,
Tuesday, Wednesday, Thursday or Friday other than a day on which banking
institutions in Melbourne, Australia, New York, New York or the NAB Borrower's
Place of Business are authorized or required by law or executive order to close.
20. NO THIRD PARTY BENEFICIARIES. Nothing herein, express or implied,
shall give to any Person, other than the Trust, the Custodian and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim hereunder.
21. AMENDMENTS; TRUST AGREEMENT CHANGES; WAIVER. This Agreement shall
not be deemed or construed to be modified, amended, rescinded, cancelled or
waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The Trust shall notify
the Custodian of any change in the Trust Agreement prior to the effective date
of any such change. Failure of either party hereto
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to exercise any right or remedy hereunder in the event of a breach hereof by
the other party shall not constitute a waiver of any such right or remedy
with respect to any subsequent breach.
22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
NAB EXCHANGEABLE PREFERRED TRUST
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
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