CUSTODY AGREEMENT
This Custody Agreement is dated May, 1993 between XXXXXX XXXXXXX TRUST COMPANY,
a New York State chartered trust company (the "Custodian"), and IDS Bank & Trust
(the "Customer").
1. The Customer hereby appoints the Custodian as a custodian of securities and
other property owned or under the control of the Customer 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 Customer. The Customer instructs the
Custodian to establish on the books and records of the Custodian an account (the
"Account") in the name of the Customer. The Custodian shall record in the
Account 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 Customer 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 Customer, as such Procedures Manual may be
amended from time to time by the Custodian by 90 days prior written notice to
the Customer (unless the Customer agrees to a shorter period). The Customer
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 Customer. The Custodian shall deliver to the Customer such information as is
necessary or appropriate for the Customer to determine that the Customer is in
compliance with Rule 17f-5 promulgated under the Investment Company Act of 1940,
as amended. 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 Customer
agrees that the Property may be physically held outside the United States. The
Custodian shall not be liable for any loss resulting directly from the physical
presence of any Property in a foreign country (and not by virtue of the actions
of the Custodian or any Subcustodian) 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 Customer 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
Customer 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 Customer'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
Customer'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 Customer'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
Customer and to such persons as the Customer directs as the Custodian and the
Customer may agree from time to time, including such reports which are described
in the Procedures Manual.
6. The Custodian shall make or cause any Subcustodian to make payments from
monies being held in the Account 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 Customer that the Custodian return monies
being held in the Account;
(d) upon a request of the Customer that monies be exchanged for or used
to purchase monies denominated in a different currency and then only
upon receipt of such exchanged or purchased monies;
(e) as provided in Section 8 and 12 hereof;
(f) upon termination of this Custody Agreement as hereinafter set
forth; and
(g) for any other purpose upon receipt of explicit instructions of the
Customer accompanied by evidence reasonably acceptable to the Custodian
as to the authorization of such payment.
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 (as hereinafter defined)
from the Customer which shall specify the purpose for which the payment is to be
made. In the event that it is not possible to make a payment in accordance with
Authorized Instructions of the Customer, 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 shall 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 the 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 explicit instructions of the
Customer accompanied by evidence reasonably acceptable to the Custodian
as to the authorization of such transfer, exchange or delivery.
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 of the Customer which shall specify the purpose for which the
transfer, exchange or delivery is to be made. In the event that it is not
possible to transfer Securities in accordance with Authorized Instructions of
the Customer, 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 from the Customer 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 Customer;
(b) receive and collect all income and principal with respect to
Securities and to credit cash receipts to the Account;
(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 Customer'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 Account, 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 Customer, 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 Customer 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 in advance between the Customer 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 one or more
persons which the Customer has previously identified to the Custodian as
authorized to act on the Customer's behalf.
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
Customer 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. The Custodian may without notice to the Customer
cause any Securities to cease to be registered in the name of any such nominee
and to be registered in the name of the Customer.
11. All cash received by the Custodian for the Account shall be held by the
Custodian as a short-term credit balance in favor of the Customer and, if the
Custodian and the Customer have agreed in writing in advance that such credit
balances shall bear interest, the Customer shall earn interest at the rates and
times as agreed between the Custodian and the Customer. The Customer understands
that any such credit balances will not be accompanied by the benefit of any
governmental insurance.
12. From time to time, the Custodian may arrange or extend short-term credit for
the Customer 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 Customer on demand. The Custodian shall be entitled to charge
the Customer 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 Customer's agent or act as a principal in foreign
exchange transactions at such rates as are agreed from time to time between the
Customer and the Custodian.
13. The Customer 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
Customer'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 Customer in
accordance with Section 12 will at all times constitute a legal, valid and
binding obligation of the Customer and be enforceable against the Customer 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 Customer 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 Custodian, the Customer
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 Customer as necessary or
advisable to accomplish the purposes of this Agreement.
15. The Customer 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 Customer 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 Account or any Property held therein. The Custodian is and any Subcustodians
are authorized to charge the Account 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. Except as set
forth in the previous sentence, or otherwise permitted pursuant to the terms of
this agreement, the Custodian shall not pledge, assign, hypothecate or otherwise
encumber Property without Authorized Instructions; it being understood that a
Subcustodian will generally retain a lien against securities which the
Subcustodian has purchased for the Account but for which the Customer has not
yet paid. If the Customer is a U.S. person as defined in Rule 902 promulgated by
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended (the "Act"), the Customer recognizes that, in connection with the
Customer's election from time to time to participate in distributions of
securities (whether pursuant to rights offerings, warrant subscriptions,
mergers, reorganizations or otherwise) which have not been registered pursuant
to the Act, the Custodian may inform the issuer and its agents that the acquire
of the securities is a U.S. person. The Custodian shall not be responsible to
the Customer for the consequences of any issuer's or agent's refusal to permit
the Customer to acquire such securities, and the Customer shall hold the
Custodian harmless from liability to the issuer and its agents in connection
with any such election by the Customer.
16. This Agreement may be terminated by the Customer or the Custodian by 90 days
written notice to the other, sent by registered mail. If notice of termination
is given, the Customer shall, within 60 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 Account.
17. The Custodian, its agents and employees will maintain the confidentiality of
information concerning the Property held in the 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 Customer of such request or requirement so that the Customer
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 Customer 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 Customer
is to be mailed postage prepaid, addressed to the Customer at the address
appearing below, or as it may hereafter be changed on the Custodian's records in
accordance with notice from the Customer.
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 Customer upon the effectiveness of any such assignment.
This Agreement shall bind the successors and assigns of the Customer 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.
------------------------
By /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
Address for record: IDS Trust
0000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000-0000
------------------------
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By /s/ Xxxxx X. Xxxxxxx
Authorized Signature
Roccato
