EXHIBIT 99.B8a
CUSTODY AGREEMENT
This Custody Agreement is dated September 1, 1993 between XXXXXX
XXXXXXX TRUST COMPANY, a New York State chartered trust company (the
"custodian"), and MAS Funds ("customer").
1. The Customer hereby appoints the Custodian as a custodian of
securities, cash 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 domestic or foreign securities ("Securities"), cash and other
property (all such Securities, cash and other Property are referred to
hereinafter collectively as 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
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time by the Custodian by written notice to the Customer. To the extent that the
terms of the Procedures Manual are inconsistent with the terms of this
Agreement, this Agreement shall govern. Subject to the immediately preceding
sentence, 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, provided that the Custodian may only appoint Subcustodians which
qualify as "Eligible Foreign Custodians" under Rule 17f-5(c)(2) promulgated
under the Investment Company Act of 1940. Furthermore, the Custodian shall
continuously monitor the eligibility of the Subcustodians and if, at any time,
the Custodian determines that any Subcustodian no longer satisfies the
requirements of Rule 17f-5(c)(2), the Custodian shall promptly give written
notice to the Customer and will act upon Authorized Instructions (as defined in
Section 9). The Custodian may hold Property for all of its customers with a
Subcustodian in a single account on the books and records of such Subcustodian
that is identified as belonging to the Custodian for the benefit of its
customers (a "Subcustodian Account"). Any Subcustodian may hold Property in a
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securities depository and may utilize a clearing agency. The Custodian shall not
be liable for any loss resulting from cases of force majeure including, but not
limited to, losses resulting from nationalization, expropriation, exchange
controls or acts of war or terrorism. Except as provided in the immediately
preceding 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
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;
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(c) The Custodian shall require that Property held by the Subcustodian
for the Custodian's account be identified in the Subcustodian Account
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 customary 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
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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 monthly reports with respect to the
safekeeping of the Property including, at a minimum, notification of any
transfer to or from the Account or any transfer of Property to or from a
Subcustodian Account, and such other 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.
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;
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(d) upon a request of the Customer that monies be exchanged for or used
to purchase monies denominated in a different currency;
(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 Authorized Instructions.
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. 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 standard practice in the jurisdiction in which settlement occurs,
upon receipt of payment therefor;
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(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 Authorized Instructions.
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. 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:
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(a) make payments to itself or others for expenses of handling Property
or other similar items reasonably 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;
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(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 or on behalf
of the Customer.
10. Securities which must be held in registered form may be registered,
to the extent permitted by law or regulation, 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.
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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.
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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).
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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 the request of the
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 reasonably related to the Custodian's performance of services under
this Agreement and the Procedures Manual. 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.
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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 acquiror
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.
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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 90 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
on any Property 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.
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17. The Custodian, its agents and employees will maintain the
confidentiality of information concerning the Property held in the Account
("Confidential Information"), including maintaining such confidentiality in any
dealings between the Custodian and 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 16. In
the absence of such a waiver, if the Custodian or such Subcustodian is compelled
by law, regulation or standard practice, 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.
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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.
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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.
MAS FUNDS
By /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
Address for record: XXX XXXXX XXXXXX
X. X. XXX 000
XXXX XXXXXXXXXXXX, XX 00000
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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