EXHIBIT 10
CUSTODY AGREEMENT
This AGREEMENT made as of the 27th day of April, 2004 by and between
WESTWOOD TRUST, a Texas Trust Company organized under the laws of the State of
Texas ("Custodian") and SAMARNAN INVESTMENT CORPORATION, a Texas corporation
("Customer") registered under the Investment Company Act of 1940 (the "1940
Act").
In consideration of the premises, undertaking and covenants herein,
the parties agree as follows:
1. APPOINTMENT AND ACCEPTANCE. Customer hereby appoints Custodian as its agent
to provide custody and other services in connection with securities, cash and
other property delivered from time to time to Custodian hereunder by, or at the
direction of, Customer, and income, distributions and payments received by
Custodian with respect thereto (collectively the "Assets"); and Custodian hereby
agrees to act in such capacity, and perform such services, and hold the Assets
in a custody account established in the name of Customer (the "Account"), upon
the terms and conditions set forth below. For purposes of this Agreement, all
references contained herein to actions, directions and responsibilities (other
than the obligations set forth in Sections 12 and 14 below) of Customer shall
include, apply to and be binding upon the Customer's agents, including any
investment manager or advisor, appointed and authorized by Customer to direct
Custodian or otherwise take actions on behalf of Customer in connection with
Custodian's services and responsibilities hereunder. Customer shall provide
written notice to Custodian of the identity of all such appointed agents and the
scope of their authority to act hereunder. Customer shall be responsible for
providing to each such agent a copy of this Agreement and all written policies
and procedures of Custodian governing its performance of services hereunder that
Customer shall receive from time to time. In the event that Customer requires
Custodian to establish one or more sub-accounts within the Account under this
Agreement ("sub-Accounts"), Customer shall identify such sub-Accounts on a
separate Exhibit A attached hereto, and which may be amended from time to time.
In such event, Customer shall deposit or direct the transfer of Assets to or
among the separate sub-Accounts. Further, for such situations, the term
"Account" as used in this Agreement shall refer to one or all of the sub-
Accounts established by Customer, as the context of this Agreement shall
require.
2. ASSET DELIVERY, TRANSFER, CUSTODY AND SAFEKEEPING.
2.1. Customer will from time to time deliver (or cause to be delivered) Assets
to Custodian, which Custodian shall receive and accept for the Account upon
appropriate directions from the Customer. All assets in the Account shall be
segregated from the securities, cash and other property of any other person and
identified as being the sole property of the Customer. All transactions
involving Assets shall be recorded in the Account.
2.2. Upon receipt of appropriate directions, Custodian will release and return
Assets to Customer, Customer's Depository (as that term is defined in Section
3.3 below) account or accounts, or otherwise deliver Assets to such location or
third party, as such directions may indicate, provided that, in connection
therewith it is the sole responsibility of Customer to provide any transfer
documentation as may be required by the Depository or third party recipient.
Custodian shall have no power or authority to assign, hypothecate, pledge or
otherwise dispose of any Assets in the account, except as provided herein or
pursuant to appropriate directions.
2.3 Such Assets shall be subject to no lien or charge of any kind in favor of
the Custodian or any persons claiming through the Custodian. Such Assets shall,
at all times, be subject to inspection by the Securities and Exchange Commission
through its employees or agents.
2.4. Custodian shall furnish Customer, as part of the services for which
Custodian charges its basic fee hereunder, with periodic Account statements (not
less frequently than annually) reflecting all Asset transactions in the Account
during the reporting period and ending Asset holdings.
2.5. Custodian shall forward to Customer, or Customer's designated agent
identified in Section 17.10, below (or as identified in a separate written
designation by Customer that is received by Custodian), all information it
receives with respect to any of the Assets concerning redemption rights that are
exercisable at Customer's option, tender or exchange offers, class action
lawsuits and other special matters or shareholder rights. Custodian shall follow
Customer's or Customer's designated agent's, as applicable, written directions
with respect thereto consistent with Custodian's governing policies and
procedures and in the absence of such directions Custodian shall take no action.
Custodian shall forward to Customer or Customer's designated agent, as
applicable, all proxy material it receives with respect to securities
included among the Assets. The registered holder of the securities shall execute
proxies so forwarded, if registered in the name of the Custodian or its nominee,
but without indicating the manner in which such proxies are to be voted.
Exception: Customer expressly acknowledges that Custodian will not forward
so-called "mini-tenders" to Customer or its designated agent, as applicable.
Mini-tenders are tender offers for a small amount of the outstanding securities
made on "target" company, generally with an offer price at or below market
value. For equity issues, unless a tender offer is made for 5% or greater of the
outstanding issue, and therefore subject to Securities & Exchange Commission
("SEC") review, the tender offer will not be forwarded by Custodian. For debt
issues, the actual terms of the offer will serve as the notification parameters.
Therefore, no tender offer will be forwarded by Custodian for a debt issue if:
(a) it is not registered with the SEC, (b) it has a "first received, first buy"
basis with no withdrawal privilege and includes a guarantee of delivery clause,
or (c) the offer includes the statement that "the purchase price includes all
accrued interest on the note and has been determined in the sole discretion of
the buyer and may be more than or less than the fair market value of the notes"
or similar language.
2.6. Customer hereby authorizes and approves Custodian's performance of its
services and duties hereunder consistent with the terms and conditions of the
Custodian's duly adopted policies and procedures, as established and modified
from time to time, related to the subject matter hereof.
3. POWERS OF CUSTODIAN. In the performance of its duties hereunder, Custodian
shall have the following powers:
3.1. To register any of the Assets in the name of Customer or in the
Custodian's name or in the name of a nominee of Custodian or in the name of the
Custodian's agent bank or to hold any of the Assets in unregistered form or in
such form as will pass title by delivery, provided that such Assets shall at all
times be recorded in Customer's Account hereunder as one of the Assets. In
consideration of Custodian's registration of any securities or other property in
the name of Custodian or its nominee or agent, Customer agrees to pay on demand
to Custodian or to Custodian's nominee or agent the amount of any loss or
liability for Stockholders' assessments, or otherwise, claimed or asserted
against Custodian or Custodian's nominee or agent by reason of such
registration.
3.2. To make, execute, acknowledge and deliver any and all documents of
transfer and conveyance and any or all other instruments that may be necessary
or appropriate to carry out the duties described and powers granted herein.
3.3. To maintain qualifying Assets in any registered clearing agency or in a
Federal Reserve Bank (collectively a "Depository"), as Custodian may select, and
to permit such deposited Assets to be registered in the name of Custodian or
Custodian's agent or nominee on the records of such Federal Reserve Bank or such
registered clearing agency or the nominee of either, and, in compliance with
Rule 17f-7 under the 1940 act, to employ and use securities depositories,
clearing agencies, clearance systems, sub-Custodians or agents located outside
the United States in connection with transactions involving foreign securities.
3.4. To employ agents and to delegate duties to them as it sees fit and to
employ or consult with experts, advisors and legal counsel (who may be employed
also by Customer) and to rely on information and advice received from such
agents, experts, advisors, and legal counsel.
3.5. To perform any and all other ministerial acts deemed by Custodian
necessary or appropriate to the proper discharge of its duties hereunder.
3.6. To hold uninvested reasonable amounts of cash whenever it is deemed
advisable to do so to facilitate disbursements or for other operational reasons.
4. PURCHASES. Upon availability of sufficient funds and receipt of appropriate
directions from Customer, Custodian shall pay for and receive Assets purchased
for the Account, payment for which is to be made in the amount specified in such
instructions and only upon receipt by Custodian of the Assets in satisfactory
form for transfer.
5. SALES. Upon receipt of appropriate directions from Customer, Custodian will
deliver Assets held by it as Custodian hereunder and sold by or for Customer
against payment to Custodian of the amount specified in such directions in
accordance with the then current securities industry practices and in form
satisfactory to Custodian. Customer acknowledges that the current securities
industry practice is delivery of physical securities against later payment on
delivery date. Custodian agrees to use its best efforts to
obtain payment therefore during the same business day, but Customer confirms its
sole assumption of all risks of payment for such deliveries.
6. SETTLEMENTS.
6.1. Custodian shall provide Customer with settlement of all purchases and
sales of Assets in accordance with Custodian's then prevailing settlement
policies provided that (a) appropriate directions for purchases and sales are
received by Custodian in accordance with Custodian's then current published
instruction deadline schedule, and (b) Custodian has all other information,
funds and/or Assets necessary to complete the transaction.
6.2. Custodian shall not be liable or responsible for or on account of any act
or omission of any broker or other agent designated by Customer to purchase or
sell securities for the Account of Customer.
7. CORPORATE ACTIONS. In connection with any mandatory conversion of Asset
securities pursuant to their terms, reorganization, recapitalization, redemption
in kind, consolidation, or other exchange transaction that does not require or
permit approval by the owner of the affected Assets, Custodian will tender or
exchange securities held for other securities, for other securities and cash, or
for cash alone.
8. COLLECTIONS. Custodian shall collect all income, principal and other
distributions due and payable on securities held either by Custodian or a
Depository but shall be under no obligation or duty to take action to effect
collection of any amount if the Assets upon which such payment is due are in
default, or if payment is refused after due demand and presentation. Custodian
shall have no responsibility to notify Customer in the event of such default or
refusal to pay, but if Custodian receives notice of default or refusal to pay
from an issuer or transfer agent, Custodian shall so advise Customer.
Collections of monies in foreign currency, to the extent possible, are to be
converted into United States dollars at customary rates through customary
banking channels, including Custodian's own banking facilities, and in
accordance with Custodian's prevailing policies for foreign funds repatriation.
All risk and expense incident to such foreign collection and conversion is the
responsibility of the Account and Custodian shall have no responsibility for
fluctuations in exchange rates affecting such collections or conversion.
9. NO DISCRETIONARY AUTHORITY; STANDARD OF CARE. Customer and Custodian
acknowledge that, except to the extent set forth in any separate instrument
signed by the parties with respect to this Agreement, Custodian's duties
hereunder do not include any discretionary authority, control or responsibility
with respect to the management or disposition of any Asset; that Custodian has
no authority or responsibility to render investment advice with respect to any
Asset; and that Custodian is not a fiduciary with respect to Customer. In
addition, it is agreed that:
9.1. Custodian shall have no duty to make any evaluation or to advise anyone of
the suitability or propriety of action or proposed action of Customer in any
particular transaction involving an Asset or the suitability or propriety of
retaining any particular investment as an Asset. Custodian shall have no duty or
authority to review, question, approve or make inquiries as to any investment
instructions given pursuant hereto. Custodian shall be under no duty or
obligation to review the securities or other property held in the Account with
respect to prudence or diversification.
9.2. Custodian shall not be liable for any loss or diminution of Assets by
reason of investment experience or for its actions taken in reliance upon a
direction or other instruction from Customer or Customer's agent.
9.3. Custodian shall have no duty or responsibility to monitor or otherwise
investigate the actions or omissions of Customer.
9.4. Custodian shall only be responsible for the performance of such duties
as are expressly set forth herein or in directions or other instructions of
Customer or Customer's agent which are not contrary to the provisions of this
Agreement. Custodian shall exercise reasonable care in the performance of its
services hereunder. In no event shall Custodian be liable for indirect or
consequential damages.
Custodian shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by directions or other instructions, actions or
omissions of Customer or by circumstances beyond Custodian's reasonable control,
including, without limitation, loss or malfunctions of utility, transportation,
computer (hardware and software) or
communication service; nor shall any such failure or delay give Customer the
right to terminate this Agreement, except as provided in section 15 of this
Agreement.
10. BOOKS, RECORDS AND ACCOUNTS.
10.1. Custodian will make and maintain proper books of account and complete
records of all Assets and transactions in the Account maintained by Custodian
hereunder on behalf of Customer. Custodian will preserve for the periods
prescribed by applicable federal statute or regulation all records required to
be maintained.
10.2. On at least four (4) business days' notice, Custodian will make available
to and permit inspection during Custodian's regular business hours by Customer
and its auditors of all books, records, and accounts retained by Custodian (or,
to the extent practicable, its agents) in connection with its duties hereunder
on behalf of Customer. Custodian will preserve for the periods prescribed by
applicable federal statute or regulation all records required to be maintained.
11. INSTRUCTIONS AND DIRECTIONS.
11.1. Custodian shall be deemed to have received appropriate "instructions" or
"directions" upon receipt of written instructions or directions, or in the case
of cash movement, written or oral instructions or directions, (a) signed or
given by any person(s) whose name(s) and signature(s) are listed on the most
recent certificate delivered by Customer to Custodian which lists those persons
authorized to give orders, corrections and instructions in the name of and on
behalf of the Customer or (b) signed or given by any other person(s) duly
authorized by Customer to give instructions or directions to Custodian hereunder
or whom Custodian reasonably believes to be so authorized (such as an investment
adviser or other agent designated by Customer, for example).
11.2. Appropriate instructions or directions shall include instructions or
directions sent to Custodian or its agent by letter, memorandum, telegram,
cable, telex, facsimile, video (CRT) terminal, internet e-mail or other
"on-line" system, or similar means of communication, or in the case of cash
movement, given orally over the telephone or in person. Customer assumes full
responsibility for the security of electronically transmitted communications,
whether sent by Customer or Custodian.
11.3. In the event that Custodian is directed to deliver Assets to any party
other than Customer or Customer's agent, appropriate directions shall include,
and Customer shall supply, customary transfer documentation as required by such
party, and, to the extent that such documentation has not been supplied,
Custodian shall not be deemed to have received appropriate directions.
12. COMPENSATION; SECURITY.
12.1. Customer shall pay to Custodian fees for its services under this Agreement
and shall reimburse Custodian for costs incurred by it hereunder as set forth in
Custodian's then current applicable fee schedule or such other fee arrangement
as Custodian and Customer may otherwise agree in writing.
12.2. In no event shall Custodian make any payment on behalf of Customer for the
purchase of, or make payment against delivery, of securities for the Account, or
transfer any funds from the Account except from immediately available funds in
the Account.
13. CUSTOMER RESPONSIBILITY. Customer shall be responsible for the review of all
reports, accountings and other statements provided thereto by the Custodian, and
shall within ninety (90) days following receipt thereof notify the Custodian of
any mistakes, defects or irregularities contained or identified therein, after
which time all such matters shall be presumed to be ratified, approved and
correct and shall not provide any basis for claim or liability against the
Custodian.
14. INDEMNIFICATION. Customer hereby agrees to fully and promptly indemnify
Custodian and its affiliates, officers, directors, employees and agents (each an
"Indemnified Party") and hold each Indemnified Party harmless from and against
any cost, losses, claims, liabilities, fines, penalties, damages and expenses
(including reasonable attorneys' and accountants' fees (collectively, a "Claim")
arising out of (i) Customer's actions or omissions or (ii) Custodian's action
taken or omitted hereunder in reliance upon Customer's directions or
instructions, or upon any information, order, indenture, stock certificate,
power of attorney, assignment, affidavit or other instrument delivered hereunder
to Custodian, reasonably believed
by Custodian to be genuine or bearing the signature of a person or persons
authorized by Customer to sign, countersign or execute the same; provided, that
Customer shall not indemnify an Indemnified Party for any Claim arising from the
Indemnified Party's judicially determined willful misfeasance, bad faith or
gross negligence in the performance of its duties under this Agreement.
15. TERMINATION.
15.1. This Agreement will remain in effect until terminated by either party
giving written notice thirty (30) days in advance of the termination date.
15.2. Upon termination of this Agreement, Custodian shall follow such reasonable
Customer instructions concerning the transfer of Assets' custody and records;
provided, that (a) Custodian shall have no liability for shipping and insurance
costs associated therewith; (b) Custodian shall not be required to make any such
delivery or payment until full payment shall have been made by Customer of all
liabilities constituting a charge on or against Custodian and until full payment
shall have been made to Custodian of all its compensation, costs, including
special termination costs, if any, and expenses hereunder; and (c) Custodian
shall have been reimbursed for any advances of monies or securities made
hereunder to Customer. If any Assets remain in the Account, Customer
acknowledges and agrees that Custodian may designate Customer as successor
Custodian hereunder and deliver the same directly to Customer.
15.3. Upon termination of this Agreement, all obligations of the parties to each
other hereunder shall cease, except that all indemnification provisions herein
shall survive with respect to any Claims arising from events prior to such
termination.
16. BINDING OBLIGATIONS. Customer and Custodian each hereby represent that this
Agreement constitutes its legal, valid and binding obligation enforceable in
accordance with the terms hereof; subject, as to enforcement of remedies, to
applicable bankruptcy and insolvency laws, and to general principles of equity.
17. GENERAL PROVISIONS.
17.1. Notice. Except as provided in paragraph 11 above, any notice or other
communication under this Agreement shall be in writing and shall be considered
given when delivered by certified mail, return receipt requested, to the parties
at the addresses set forth on the execution page hereof (or at such other
address as a party may specify by notice to other). Notice shall be effective
upon receipt if by mail, or on the date of personal delivery (by private
messenger, courier service or otherwise) or telex or facsimile, whichever occurs
first, to the addressed indicated below. The below addresses and individuals may
be changed at any time by an instrument in writing executed by the party giving
same and given to the other party, in accordance with the procedure set forth
above.
17.2. No Tax Responsibility. Unless expressly indicated otherwise below in this
section and notwithstanding any other terms or conditions contained herein,
Custodian shall not be responsible for, and Customer does hereby waive all
duties or functions of Custodian (imposed by law or otherwise) relating to, the
withholding and government deposit of any and all taxes, or amounts with respect
thereto, that may be incurred or payable in connection with the Account
established hereunder, income or gain realized on Assets held therein or
transactions undertaken with respect thereto. Except as required by law in such
manner that cannot be delegated to or assumed by Customer, Custodian shall have
no responsibility to undertake any federal, state, or local tax reporting in
connection with Assets, the Account or transactions therein. (Check only one
below.)
_____ Custodian shall have no duty to provide tax information.
_____ Custodian shall provide tax information as reasonably
requested by Customer, including Form 1099.
17.3. Complete Agreement; Modification. This Agreement contains a complete
statement of all the arrangements between the parties with respect to its
subject matter, supersedes all existing agreement(s) between them concerning the
subject, and cannot be amended or modified in any manner except by a written
agreement executed by both parties. Notwithstanding the foregoing, if at any
time Custodian is holding assets or property of Customer pursuant to any other
custodial, pledge or other agency agreement with Customer (or which Customer has
acknowledged in instructions to Custodian) and one or more third parties that
involves Custodian's duties or obligations to a third party (which may be
affiliates to Custodian)
with respect to Assets, the terms and requirements of the other agreement(s)
concerning such Assets shall supersede and control the provisions and duties set
forth herein.
17.4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas applicable to agreements made and
to be performed in Texas.
17.5. Assignment. No party may assign any of its rights hereunder without the
consent of the other, which consent shall not be unreasonably withheld. The
foregoing consent requirement does not apply if either party shall merge or
consolidate with or sell substantially all of its assets to another corporation,
provided that such other corporation shall assume without qualification or
limitation all obligations of that party hereunder either by operation of law or
by contract.
17.6. Separability. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstances, it shall nevertheless
remain applicable to all other persons and circumstances.
17.7. No Third Party Rights. In performing its services hereunder, Custodian is
acting solely on behalf of Customer. No agency, contractual or service
relationship shall be deemed to be established hereby between Custodian and any
other persons.
17.8. Counterparts and Duplicates. This Agreement may be executed in any number
of counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument. This Agreement and any
administrative form under the Agreement may be proved either by a signed
original or by a reproduced copy thereof (including, not by way of limitation, a
microfiche copy or an electronic file copy).
17.9. Shareholder Communications Act Authorization. The Shareholder
Communications Act of 1985, as amended, requires Custodian to make an effort to
permit direct communications between a company that issues securities and the
shareholder that exercises shareholder rights with respect to those securities.
Unless Customer specifically directs Custodian in writing not to release
Customer's name, address and security position to requesting companies,
Custodian is required by law to disclose Customer's name and address to such
companies. Therefore the Customer hereby responds to the following question [no
response will mean "yes"]. Does Customer authorize Custodian to provide its
name, address and security position to requesting companies whose stock is owned
in this Account? ___________________Yes / _______No
17.10. Customer's Agent - Shareholder Rights. Should Customer require that a
designated agent for the Account, such as an investment advisor, be responsible
for proxy voting and other special matters and shareholder rights as specified
in Section 2.4, above, the Customer shall provide the name and address of that
agent below. Such agent shall be removed upon Custodian's receipt of a written
removal from Customer. Customer may designate more than one agent to be
responsible for separate sub-Accounts or investment accounts under this
Agreement by providing a clear, written designation to that effect to Custodian.
Custodian hereunder has no authority or responsibility with regard to proxy
voting or any similar special matters. Therefore, it may not be designated below
unless it has separately agreed in writing to act as investment advisor for the
Account.
DESIGNATED AGENT: Westwood Management Corp.
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxx, XX 00000
Telephone Number: 000-000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representative as of the date and year
first above written.
SAMARNAN INVESTMENT CORPORATION (CUSTOMER) WESTWOOD TRUST (CUSTODIAN)
By: /s/ Xxxxxx X. Xxxxx Xx. By: /s/ Xxxxx X. Xxxxx
----------------------------- ----------------------------
Xxxxxx X. Xxxxx Xx. Xxxxx X. Xxxxx
Title: President Title: President
Date: 4-27-2004 Date: 4-27-2004
Address: Address:
Samarnan Investment Corporation Westwood Trust
000 Xxxxx Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxx 00000 Xxxxxx, XX 00000
Attention: Xxx Xxxxx Attn: Xxxxx X. Xxxxx
