EXHIBIT 8B
CUSTODY AGREEMENT
Custody Agreement, dated as of January 4, 1993, between XXXXXX XXXXXXX
TRUST COMPANY (the "Custodian") and XXXXXX XXXXXXX FUND, INC. (the "Customer").
1. The Customer hereby appoints the Custodian as custodian of Eligible
Securities (as hereinafter defined) owned or held by the Customer and instructs
the Custodian to establish an account identified as belonging to the Customer
(the "Account"). The Custodian shall have general responsibility for the
safekeeping of such Eligible Securities and any and all monies and other
property (collectively, the "Property") received by the Custodian or any
Subcustodian appointed as described below for the account of the Customer.
"Eligible Securities" means the securities delivered from time to time for
custody in the Account. 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 a copy of which has previously been delivered
to the Customer (the "Procedures Manual"), and which may be amended from time to
time by mutual agreement of the Custodian and the Customer. The Customer
acknowledges that the Procedures Manual constitutes an integral part of this
Agreement.
2. The Customer agrees that the Property held in the Account may be
physically held outside the United States.
3. The Property held in the Account 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 provide the
Customer with information and documentation necessary for the Customer to
approve the use of, and the Custodian's contracts with, the Subcustodians. 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 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,
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the liability of the Custodian for losses incurred by the Customer in respect of
Property held by the Custodian in the Account shall not be affected by the
Custodian's use of Subcustodians.
4. With respect to Property held by a Subcustodian pursuant to Section 3:
(a) The Custodian will identify on its books as belonging to the
Customer any Property held by such Subcustodian for the Custodian's account;
(b) In the event that the Subcustodian holds Property in a securities
depository, 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;
(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 other property held by the Subcustodian and as held
solely for the benefit of customers of the Custodian; and
(d) The Custodian will hold Property through a Subcustodian only if
(i) such Subcustodian and any securities
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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.
5. The Custodian shall allow the Customer's accountants, officers,
employees, administrators and any person designated by a regulatory authority
having jurisdiction over the Customer reasonable access to the Custodian's
records relating to the Property held by the Custodian as they may reasonably
require in connection with their examination of the Customer's affairs. The
Custodian shall also obtain from any Subcustodian (and will request 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 the laws of the jurisdiction or jurisdictions to which such
Subcustodian, securities depository or clearing agency is subject, to permit the
Customer's accountants, officers, employees, administrators and any person
designated by a
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regulatory authority having jurisdiction over the Customer 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
judgement may deem sufficient to ensure such reasonable access.
6. The Custodian shall provide such reports and other information to the
Customer as the Custodian and the Customer may agree from time to time.
7. The Custodian shall make or cause any Subcustodian to make payments
from monies being held in the Account, except as provided in Section 9 hereof,
only
(a) upon the purchase of Eligible Securities for the account of the
Customer and then only upon the delivery of such Eligible Securities;
(b) for payments to be made in connection with the conversion,
exchange or surrender of Eligible Securities in the Account;
(c) upon a request of the Customer that the Custodian return monies
being held in the Account;
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(d) upon termination of this Custody Agreement as hereinafter set
forth; and
(e) for any other purpose upon receipt of Authorized Instructions
accompanied by evidence reasonably acceptable to the Custodian as to the
authorization of such payment.
Except as provided in the last sentence of this Section 7, all payments
pursuant to this Section 7 will be made only upon receipt by the Custodian of
Authorized Instructions (as hereinafter defined) of 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 (d) of this
Section 7 will be made in accordance with Section 14.
8. Eligible Securities held in the Account will be transferred, exchanged
or delivered by the Custodian or a Subcustodian, except as provided in Section 9
hereof, only
(a) upon sale of such Eligible Securities for the account of the
Customer and then only upon receipt of payment therefor;
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(b) upon exercise of conversion, subscription, purchase or other
similar rights represented by such Eligible Securities;
(c) in the case of warrants, rights or similar securities, upon the
surrender thereof in the exercise of such warrants, rights or similar
securities;
(d) for delivery in connection with any loans of securities
made by the Customer, but only against receipt of such collateral as agreed upon
from time to time by the Custodian and the Customer;
(e) upon the termination of this Custody Agreement as hereinafter set
forth; and
(f) for any other purpose upon receipt of Authorized Instructions
accompanied by evidence reasonably acceptable to the Custodian as to the
authorization of such transfer, exchange or delivery.
Except as provided in the last sentence of this Section 8, all transfers,
exchanges or deliveries of Eligible Securities in the Account pursuant to this
Section 8 will be made only upon receipt by the Custodian of Authorized
Instructions of the Customer which shall specify the purpose for which the
transfer,
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exchange or delivery is to be made. In the event that it is not possible to
transfer Eligible 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
(e) of this Section 8 will be made in accordance with Section 14.
9. In the absence of Authorized Instructions from the Customer to the
contrary, the Custodian may, and it 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 of
Eligible Securities in the Account 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
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definitive form and the exchange of warrants, or other documents of entitlement
to securities, for the securities themselves);
(d) surrender Eligible Securities in the Account 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 Eligible
Securities held in the Account;
(f) pay or cause to be paid, from the Customer's account, any and all
taxes and levies in the nature of taxes imposed on Property in the Account by
any governmental authority in connection with 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 sale, purchase, transfer and other dealings with the Property except as
otherwise directed by the Customer.
10. "Authorized Instructions": shall mean instructions of the Customer
received by tested telex or telecopy or by such other means as may be agreed in
writing between the Customer and
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the Custodian. Unless otherwise specified in this Agreement, the Custodian
shall be entitled to act, and shall have no liability for acting, 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 customer.
11. Eligible Securities held in the Account may be registered in the name
of the Custodian or the Custodian's nominee or, in the case of Eligible
Securities in the custody of an entity other than the Custodian, in the name of
such entity or its nominee. The Customer agrees to hold the Custodian harmless
from any liability to a nominee acting as a holder of record of such Eligible
Securities. The Custodian may without notice to the Customer cause any such
Eligible Securities to cease to be registered in the name of any such nominee
and to be registered in the name of the Customer.
12. 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 or of this Agreement or the
Procedures
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Manual. 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.
13. 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 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 on any and all Property in the Account for any
amount owing to the Custodian from time to time under this Agreement.
14. This Agreement may be terminated by the Customer or the Custodian by
60 days written notice to the other, sent by registered mail. If notice of
termination is given the Customer shall, within 30 following the giving of such
notice, deliver to the Custodian a statement in writing specifying the successor
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custodian or other person to whom the Custodian shall transfer the Property in
the Account. In either event the Custodian, subject to the satisfaction of any
lien it may have, will transfer such Property to the person so specified. If
the Custodian does not receive such statement, the Custodian, at its election,
may transfer such 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 such Property until
such a statement is deliver 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 in the Account.
15. 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
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concerning the Property, the Custodian shall 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 15.
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.
16. 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: Xxxx Xxxxxxx, Executive Officer, 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.
17. The Custodian may assign all of its rights and obligations hereunder
to any entity which is qualified to act as custodian under the terms of this
Agreement and majority-owned,
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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.
By /s/ Xxxxxx Xxxxxxx - Vice President
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Xxxxxx Xxxxxxx Fund, Inc.
Authorized Signature(s) & Title(s)
Address for record:
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By /s/
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Authorized Signature
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