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Exhibit 99.2.J(i)
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this 8th day of October, 1997 by
and between The Bank of New York, a New York banking corporation (the
"Custodian"), and DECS Trust II (such trust and the trustees thereof acting in
their capacity as such being referred to herein as the "Trust"), a statutory
business trust organized under the Business Trust Act of the State of Delaware
pursuant to a Declaration of Trust dated as of September 2, 1997 (as it may be
amended and restated from time to time, the "Trust Agreement").
WITNESSETH
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold forward purchase
contracts with one or more existing shareholders of Royal Group Technologies
Limited (individually, a "Contract" and collectively, the "Contracts"), to hold
security for the performance of such shareholders of their obligations under
the Contracts pursuant to related collateral agreements (the "Collateral
Agreements") and to issue DECS in accordance with the terms and conditions of
the Trust Agreement;
WHEREAS, the Trustees desire to engage the services of the Custodian to
perform certain custodial duties for the Trust; and
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.
2. Appointment of Custodian; Transfer of Assets. The Trust hereby
constitutes and appoints the Custodian, and the Custodian accepts such
appointment, as agent of the Trust and as custodian of all of the property,
including but not limited to, the Contracts, the Treasury Securities, the
Temporary Investments, any cash and any other property at any time owned or
held by the Trust (other than Pledged Items(as defined in the Collateral
Agreements) held by the Collateral Agent thereunder) (collectively, the
"Assets"). The Trust hereby deposits the Assets owned by the Trust on the date
hereof with the Custodian and the Custodian hereby accepts such
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Assets into its custody, and the Trust shall deliver to the Custodian all
additional 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 have been approved
by the Trust, including but not limited to, The Depository Trust Company and
the Federal Reserve Book Entry System. 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 paragraph 4
below and then only for the account of the Trust. The Assets shall be subject
to no lien 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 accountants
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 accountants 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 actions with
respect to the Assets as directed in writing by any Trustee or by any officer
of the Administrator 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, request, consent, affidavit, notice, opinion, direction,
endorsement, assignment, resolution, draft or other document, prima facie
properly executed, 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 Trustees pursuant hereto; provided that this provision shall
not protect the Custodian against any liability to which it would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties
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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 Trustees, other than as expressly
provided herein. The Custodian shall not be responsible for or in respect of the
validity of any signature by or on behalf of the Trustees.
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 pecuniary costs of the Custodian from such actions shall
be expenses which are reimbursable pursuant to paragraph 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
expenses, including 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 Trustees, not less than 60 days before the date specified in such
instrument when, subject to clause (b) of this paragraph 9, such resignation is
to take effect. Upon receiving such notice of resignation, the Trustees shall
use their 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 Trustees, the resigning
Custodian may forthwith apply to a court of competent jurisdiction for the
appointment of a successor Custodian. 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
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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 retiring Custodian; and
the retiring 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 retiring 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
or thereto, provided that such corporation meets the requirements set forth in
the Trust Agreement and provided further that the Trust has given its prior
written consent to the Custodian with respect to any such merger, conversion or
consolidation.
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 expenses and disbursements incurred hereunder, 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. Custodian's Limited Liability. The Trust shall indemnify and hold
the Custodian harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a
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claim against it and reasonable attorneys' fees and disbursements), liability
or claim incurred by reason of any inaccuracy in information furnished to the
Custodian by the Trustees, or any act or omission in the course of, connected
with or arising out of any services to be rendered hereunder, provided that the
Custodian shall not be indemnified and held harmless from and against any such
loss, damages, cost, expense, liability or claim 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. 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
termination of the Trust or the appointment of a successor Custodian.
18. Choice of Law. This Agreement is executed and delivered in the
State of New York, and all laws or rules of construction of the State of New
York shall govern the right of the parties hereto and the interpretation of the
provisions hereof.
19. Notices. Any notice to be given to the Trust hereunder shall be in
writing and shall be duly given if mailed or delivered to DECS Trust II, c/o
Xxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxx Inc. Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and to the Custodian if mailed or delivered to The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxx, Tel: (000) 000-0000, Fax: (000) 000-0000 or at such other address as
shall be specified by the addressee to the other party hereto in writing.
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 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, canceled 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 Trustees 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 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. Counterparts. This Agreement may be signed in counterparts with
all counterparts 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.
Trustee
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
as Trustee
The Bank of New York
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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