Exhibit 99.L
EXHIBIT L
Custodial Undertaking
EXECUTION VERSION
CUSTODIAL UNDERTAKING, dated as of January 4, 2001 (this "CUSTODIAL
UNDERTAKING"), among Salomon Brothers International Limited ("BORROWER"), Banco
Santander Central Hispano S.A., acting through its London branch ("LENDER") and
The Bank of New York ("CUSTODIAN").
WHEREAS, Borrower and Lender have entered into a Loan and Security
Agreement (as amended and supplemented from time to time, the "LOAN AND SECURITY
AGREEMENT") dated as of January 4, 2001, pursuant to which Borrower will be
obligated from time to time to pledge certain collateral to Lender to secure
Borrower's obligations to Lender thereunder; and
WHEREAS, Custodian has agreed to act as custodian with respect to such
collateral, all as more particularly set forth herein;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. DEFINITIONS
Whenever used in this Custodial Undertaking, the following words shall
have the meanings set forth below.
A. "AUTHORIZED PERSON" shall mean any person, whether or not any such
person is an officer or employee of Lender or Borrower, as the case may be, duly
authorized to give Oral Instructions and Written Instructions on behalf of
Lender or Borrower, such persons and their specimen signatures to be designated
in Schedule I attached hereto; as such Schedule I may be amended from time to
time.
B. "BOOK ENTRY SECURITIES" shall mean Book-Entry Treasury Securities as
defined in 31 C.F.R. Part 357.2 and any other securities registered in the form
of an entry on the records of the Book-Entry System.
C. "BOOK-ENTRY SYSTEM" shall mean the Treasury/Reserve Automated Debt
Entry System maintained at The Federal Reserve Bank of New York ("FRBNY").
D. "BUSINESS DAY" shall mean any day on which Custodian, the Book-Entry
System and appropriate Clearing Corporations(s) are open for business.
E. "CLEARING CORPORATION" shall mean The Depository Trust Company,
Government Securities Clearing Corporation, and any other U.S. domestic clearing
corporation within the meaning of Section 8-102 of the UCC or otherwise
authorized to act as a securities depository or clearing agency.
F. "CLEARING CORPORATION SECURITIES" shall mean securities which are
credited to a securities account of the Custodian in the records of a Clearing
Corporation.
G. "COLLATERAL" means all Eligible Collateral, distributions, dividends or
income thereon and any proceeds thereof transferred to or otherwise received by
Lender (or Custodian on behalf of Lender) pursuant to the Loan and Security
Agreement and not returned to Borrower thereunder or hereunder.
H. "COLLATERAL ACCOUNT" shall mean the securities account maintained by
Custodian hereunder in which Eligible Collateral shall be deposited by Borrower
and pledged to Lender pursuant to the Loan and Security Agreement. The
Collateral Account shall be deemed to be a "securities account" within the
meaning of the UCC. For purposes of this Custodial Undertaking, the Collateral
Account shall include any account for the deposit of cash in connection
therewith.
I. "CROWN CASTLE" means Crown Castle International Corp., a Delaware
corporation.
J. "ELIGIBLE COLLATERAL" means (i) shares of the Underlying Equity, (ii)
U.S. Dollar cash, (iii) negotiable debt securities issued by the United States
Treasury Department, and (iv) negotiable debt securities of issuers (A) with a
rating as of the date of transfer of at least BBB- by Standard & Poor's Ratings
Services and at least Baa3 by Xxxxx'x Investors Service, Inc. and (B) which
securities are, as of the date of transfer, registered securities traded on a
U.S. national securities exchange or in the over-the-counter market and freely
tradable under the U.S. Securities Act of 1933, as amended.
K. "EVENT OF DEFAULT" has the meaning set forth in Section 10(a) of the
Loan and Security Agreement.
L. "LOAN" means the loan made by Lender to Borrower pursuant to the Loan
and Security Agreement.
M. "MARKET VALUE" means, with respect to any Eligible Collateral or
Collateral, as of any date of determination, (i) in the case of U.S. Dollar
cash, the amount thereof, and (ii) otherwise, the bid price thereof as of the
close of trading on the immediately preceding Business Day.
N. "NOTICE OF DEFAULT" shall mean a written notice delivered by Lender to
Custodian and, to the extent required under the Loan and Security Agreement,
Borrower, informing Custodian and, to the extent required under the Loan and
Security Agreement, Borrower of an Event of Default and setting forth the
specific Event of Default.
O. "ORAL INSTRUCTIONS" shall mean verbal instructions received by
Custodian from an Authorized Person.
P. "PHYSICAL SECURITIES" shall mean securities and money market
instruments issued in definitive form which are not Book-Entry Securities or
Clearing Corporation Securities.
Q. "SUBSTITUTE COLLATERAL" has the meaning set forth in Section 7(n) of
the Loan and Security Agreement.
R. "UCC" shall mean the Uniform Commercial Code of the State of New York
(as amended from time to time).
S. "UNDERLYING EQUITY" means the common stock, par value $0.01 per share,
of Crown Castle; PROVIDED that if any new or different security shall be
exchanged for the Underlying Equity by recapitalization, merger, consolidation
or other corporate action, such new or different security shall, effective upon
such exchange, be deemed to become the Underlying Equity, in substitution for
the Underlying Equity for which such exchange is made.
T. "WRITTEN INSTRUCTIONS" shall mean written communications received by
Custodian from an Authorized Person by telex, facsimile or any other electronic
system whereby the receiver of such communications is able to verify by codes,
passwords or otherwise with a reasonable degree of certainty the identity of the
sender of such communications.
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References to time in this Custodial Undertaking shall mean the time in
effect on that day in New York, New York. Except as may otherwise apply for
income, dividends or distributions payable on particular securities or as
otherwise may be agreed to in writing by the parties hereto, all provisions in
this Custodial Undertaking for the transfer, payment or receipt of funds or cash
shall mean transfer of, payment in, or receipt of, United States dollars in
immediately available funds.
2. APPOINTMENT OF CUSTODIAN; COLLATERAL ACCOUNT
A. Borrower and Lender hereby appoint Custodian as custodian of all
Eligible Collateral or Collateral at any time received by Custodian in
connection with the Loan and Security Agreement and as the agent of Lender to
return Collateral to Borrower as provided herein. Custodian hereby accepts
appointment as such custodian and agent and agrees to establish and maintain the
Collateral Account and appropriate records identifying the Collateral in or
credited to the account as pledged by Borrower to Lender.
B. Borrower and Lender each authorizes and instructs Custodian to utilize
the Book-Entry System, Clearing Corporations and the receipt and delivery of
physical certificates or any combination thereof in connection with its
performance hereunder. Book-Entry Securities and Clearing Corporation Securities
credited to the Collateral Account will be represented in accounts at the
Book-Entry System and the appropriate Clearing Corporation in the name of
Custodian or its nominee which include only assets held by Custodian for its
customers and shall not include any assets held by Custodian in its individual
capacity. Transfers of Eligible Collateral or Collateral in the form of
Book-Entry Securities and Clearing Corporation Securities hereunder will be
effected in accordance with, and subject to, the rules, regulations, operating
procedures and custody arrangements of the Book-Entry System and each Clearing
Corporation, respectively.
3. REPRESENTATIONS AND WARRANTIES
A. BORROWER, LENDER AND CUSTODIAN. Borrower, Lender and Custodian each
represents and warrants, which representations and warranties will be deemed to
be repeated on each date Eligible Collateral or Collateral is transferred
hereunder, that:
(i) It is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to execute and
deliver this Custodial Undertaking and to perform all of the duties and
obligations to be performed by it hereunder.
(ii) This Custodial Undertaking is legally and validly entered into,
does not, and will not, violate any ordinance, charter, by-law, rule or statute
applicable to it, and is enforceable in accordance with its terms, except as may
be limited by bankruptcy, insolvency or similar laws, or by equitable principles
relating to or limiting creditors' rights generally; and
(iii) The person executing this Custodial Undertaking on its behalf
has been duly authorized to do so.
B. FURTHER REPRESENTATIONS OF CUSTODIAN. Custodian further represents and
warrants, which representations and warranties will be deemed to be repeated on
each date Eligible Collateral or Collateral is transferred hereunder, that:
(i) It is a New York trust company with its principal office at Xxx
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
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(ii) It maintains a book-entry securities account with FRBNY and
each Clearing Corporation in which it holds securities hereunder; and
(iii) It will maintain the Collateral Account as a custody account
and shall administer the Collateral Account in the same manner it administers
similar accounts established for the same purpose.
4. CUSTODY OF COLLATERAL
A. TRANSFERS.
(i) TRANSFERS OF COLLATERAL. All transfers of Eligible Collateral
required to be made by Borrower to Lender pursuant to Section 7 of the Loan and
Security Agreement shall be made to the Custodian for credit to the Collateral
Account.
(ii) RETURN OF COLLATERAL. Lender hereby agrees to direct Custodian,
in respect of each Business Day on which Lender is required to transfer
Collateral to Borrower pursuant to Section 7 of the Loan and Security Agreement,
to transfer such Collateral to Borrower.
(iii) SUBSTITUTIONS. Lender hereby authorizes Custodian, upon Oral
or Written Instructions from Borrower, to transfer Collateral to Borrower
against transfer to the Collateral Account of Substitute Collateral. Custodian
shall have no duty to determine whether any such Substitute Collateral or the
Market Value thereof, complies with the terms of the Loan and Security
Agreement.
B. MAINTENANCE OF THE COLLATERAL ACCOUNT.
(i) PHYSICAL SECURITIES. Custodian shall take possession of each
Physical Security comprising Eligible Collateral at a secure facility at one of
its offices in New York City and shall identify such Physical Securities on its
books and records as belonging to Borrower and pledged to Lender.
(ii) BOOK-ENTRY SECURITIES. Collateral which is a Book-Entry
Security shall be continuously maintained by Custodian in the Book-Entry System.
Custodian shall credit such Book-Entry Securities to the Collateral Account.
(iii) CLEARING CORPORATION SECURITIES. Collateral which is either
(i) a Clearing Corporation Security or (ii) part of a fungible bulk of Clearing
Corporation Securities shall be continuously maintained by Custodian in an
account with the appropriate Clearing Corporation. Custodian shall continuously
credit such Clearing Corporation Securities to the Collateral Account.
C. STATUS OF CUSTODIAN; COLLATERAL. The parties intend that Custodian
shall act as a "securities intermediary" as such term is defined in the UCC. In
addition, the parties agree that all Collateral (excluding cash) in the
Collateral Account shall be treated as "financial assets", as such term is
defined in the UCC.
D. PLEDGE OF ELIGIBLE COLLATERAL. All Collateral credited to the
Collateral Account from time to time will be held by Custodian as custodian for
Lender. Custodian will take such actions with respect to the Collateral Account
and the Collateral as Lender shall direct and in no event shall any consent of
Borrower be required for the taking of any such action by Custodian. Lender will
not instruct Custodian to deliver any Collateral to any person other than
Borrower until an Event of Default has occurred with respect to Borrower and
will otherwise comply with its obligations with respect to the Collateral under
the Loan and Security Agreement. Notwithstanding anything to the contrary
herein, Custodian shall have no
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right to, and shall not, vote or give any consent with respect to any Collateral
in the form of shares of the Underlying Equity. Custodian shall not release or
dispose of the Collateral without the Lender's prior consent.
E. INSTRUCTIONS. Any instruction by Lender or Borrower to Custodian to
transfer Collateral from the Collateral Account shall be set forth in a written
notice substantially in the form attached hereto as Appendix I, delivered to a
Vice President or above in Custodian's Broker Dealer Services Division with a
copy to the other party. Custodian shall, as promptly as practicable under the
circumstances, act in accordance with such instructions to the extent otherwise
permitted hereunder; it being understood and agreed that Custodian shall have no
liability for its inability to comply with such instructions if the rules or
systems of the Book-Entry System and/or applicable Clearing Corporation prevent
Custodian from transferring Collateral from the Collateral Account. Borrower
shall be responsible for and pay to Custodian all applicable fees, costs and
charges associated with such transfer from the Collateral Account.
F. NO LIEN OR PLEDGE BY CUSTODIAN. Custodian agrees that Collateral
credited to the Collateral Account shall not be subject to any security
interest, lien or right of setoff in favor of or by Custodian or any third party
claiming through Custodian, and Custodian shall not pledge, encumber,
hypothecate, transfer, dispose of, otherwise grant any third party an interest
in, or provide any third party with control (as defined in Section 8-106 or
9-115(1)(e) of the UCC) with respect to, any Collateral. Custodian waives any
security interest in or right of setoff against the Collateral for any fees,
costs, expenses or other obligations payable in respect of the Collateral
Account by Borrower.
G. PAYMENT OF DISTRIBUTIONS. Custodian shall transfer to Borrower all
income, dividends or other distributions received by Custodian with respect to
Collateral promptly upon receipt, but in no event later than 5:00 p.m. on the
Business Day following the day of receipt, except if Lender has delivered a
Notice of Default to Custodian and Borrower and such notice has not been
rescinded or Lender otherwise instructs Custodian in writing.
H. VALUATION; STATEMENTS. On each Business Day, Custodian shall determine
the Market Value of all Collateral in the Collateral Account and no later than
10:00 a.m. on the next following Business Day provide Borrower and Lender a
statement of such Market Value and of the composition of all Collateral in the
Collateral Account as of the close of business in New York on the preceding
Business Day. Borrower and Lender shall promptly review all such statements and
shall promptly advise Custodian of any error, omission or inaccuracy in such
statements. Custodian shall undertake to correct any errors, failures or
omissions that are reported to Custodian by Borrower or Lender. Any such
corrections shall be reflected on subsequent statements.
I. DELIVERIES BY CUSTODIAN. All transfers of Collateral by Custodian to
Borrower from the Collateral Account shall be made by delivery to the account(s)
designated in Schedule II, as it may be amended from time to time by delivery to
and receipt by Custodian of a new Schedule II. Custodian shall have no further
duties hereunder with respect to Collateral so delivered to Borrower.
5. LOAN TERMINATION DATE
Subject to Paragraph 6 hereof and Section 7 of the Loan and Security Agreement,
on the date of termination of the Loan, Lender shall instruct Custodian to
transfer from the Collateral Account to Borrower all Collateral therein.
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6. DEFAULT
In the event that Lender delivers a Notice of Default to Custodian, Custodian
shall act in accordance with the instructions of Lender. Custodian shall fully
rely without further inquiry on the statements set forth in such Notice of
Default and shall be held harmless by Borrower for so acting.
7. CONCERNING CUSTODIAN
A. LIMITATION OF LIABILITY; INDEMNIFICATION. Custodian shall not be liable
for any costs, expenses, damages, liabilities or claims, including reasonable
fees of counsel (collectively, "LOSSES"), resulting from its action or inaction
in connection with this Custodial Undertaking, including Losses which are
incurred by reason of any action or inaction by the Book-Entry System, or any
Clearing Corporation, or their successors or nominees, except for those Losses
arising out of Custodian's negligence, bad faith or willful misconduct. In no
event shall Custodian be liable to Lender, Borrower or any third party for
special, indirect or consequential damages, or lost profits or loss of business,
arising under or in connection with this Custodial Undertaking. Custodian may,
with respect to questions of law, apply for and obtain the advice and opinion of
counsel, and shall be fully protected with respect to anything done or omitted
by it in good faith in conformity with such reasonable advice or opinion. Each
of Lender and Borrower agrees, severally but not jointly, to indemnify Custodian
and to hold it harmless against any and all Losses which are sustained by
Custodian (i) in the case of Lender's indemnity, as a result of Custodian's
action or inaction in connection with this Custodial Undertaking pursuant to
Instructions of Lender and (ii) in the case of Borrower's indemnity, otherwise
as a result of Custodian's action or inaction in connection with this Custodial
Undertaking, except in the case of either (i) or (ii) those Losses arising out
of Custodian's negligence, bad faith or willful misconduct and except, with
respect to Lender, Losses, if any, relating to fees owed by Borrower to
Custodian. It is expressly understood and agreed that Custodian's right to
indemnification hereunder shall be enforceable only against Lender and Borrower
directly, without any obligation to first proceed against any third party for
whom it may act, and irrespective of any rights or recourse that Lender or
Borrower may have against any such third party. This indemnity shall be a
continuing obligation of Lender and Borrower notwithstanding the termination of
the Loan or this Custodial Undertaking.
B. NO GUARANTY BY CUSTODIAN. It is expressly agreed and acknowledged by
Lender and Borrower that Custodian is not guaranteeing performance of or
assuming any liability for the obligations of Lender or Borrower under the Loan
and Security Agreement nor is it assuming any credit risk associated with the
Loan and Security Agreement, which liabilities and risks are the responsibility
of Lender and Borrower; further, it is expressly agreed that Custodian is not
undertaking to make credit available to Lender or Borrower in connection with
the Loan and Security Agreement.
C. NO DUTY OF INQUIRY. Without limiting the generality of the foregoing,
Custodian shall be under no obligation to inquire into, and shall not be liable
for:
(i) the validity of the issue of any securities pledged by Borrower,
or the legality, validity or enforceability of any such pledge;
(ii) the due authority of any Authorized Person to act on behalf of
Lender or Borrower with respect to Collateral held in the Collateral Account;
(iii) the due authority of Lender or Borrower to pledge or hold any
particular Collateral hereunder; or
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(iv) whether the Collateral held in the Collateral Account is
Eligible Collateral or otherwise of a type or amount required by the Loan and
Security Agreement.
D. SECURITIES IN DEFAULT. Custodian shall not be under any duty or
obligation to take action to effect collection of any amount in respect of the
Collateral which amount is in default, or if payment is refused after due demand
or presentation, unless and until (i) it shall be directed to take such action
by Written Instructions and (ii) it shall be assured to its satisfaction of
reimbursement of its costs and expenses in connection with any such action.
E. CUSTODIAN FEE. Custodian shall be entitled to receive from Borrower and
Borrower shall pay to Custodian such compensation as may be agreed upon from
time to time between Custodian and Borrower and Custodian's reasonable
out-of-pocket expenses.
F. RELIANCE ON ORAL/WRITTEN INSTRUCTIONS. Custodian shall be entitled to
rely upon any Written Instruction or Oral Instruction received by Custodian and
reasonably believed by Custodian to be delivered by an Authorized Person. Lender
and Borrower agree to forward to Custodian Written Instructions confirming any
and all Oral Instructions in such manner that such Written Instructions are
received by Custodian by the close of business of the same day that such Oral
Instructions are given to Custodian. Lender and Borrower agree that the fact
that such confirming Written Instructions are not received or that contrary
Written Instructions are received by Custodian shall in no way affect the
validity or enforceability of the transactions previously authorized and
effected by Custodian.
G. RELIANCE ON PRICING SERVICES. Custodian is authorized to utilize any
generally recognized pricing information service (including brokers and dealers
of securities) in order to perform its valuation responsibilities hereunder, and
Borrower and Lender agree to hold Custodian harmless from and against any Losses
incurred as a result of errors or omissions of any such pricing information
service, broker or dealer.
H. FORCE MAJEURE. Custodian shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Custodial
Undertaking arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including without limitation, acts of God,
earthquakes, fires, floods, wars, civil or military disturbances, sabotage,
epidemics, riots, loss or malfunctions of utilities, computer (hardware or
software) or communications service, labor disputes, acts of civil or military
authority or governmental, judicial or regulatory actions; provided, however,
that Custodian shall use its best efforts to resume performance as promptly as
practicable under the circumstances.
I. NO ADDITIONAL DUTIES. Custodian shall have no duties or
responsibilities except such duties and responsibilities as are specifically set
forth in this Custodial Undertaking, and no covenant or obligation shall be
implied in this Custodial Undertaking against Custodian.
8. TERMINATION
Any of the parties hereto may terminate this Custodial Undertaking by giving to
the other parties a notice in writing specifying the date of such termination,
which shall be not less than thirty (30) days after the date of giving of such
notice. Upon termination hereof, Borrower shall pay to Custodian such
compensation as may be due to Custodian as of the date of such termination and
shall likewise reimburse Custodian for any disbursements and expenses made or
incurred by Custodian and payable or reimbursable hereunder. If Lender and
Borrower do not provide consistent Written Instructions designating a successor
custodian or otherwise directing the transfer of all property in the Collateral
Account prior to the termination date, Custodian shall, at Borrower's expense,
continue to hold Collateral
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in the Collateral Account subject to the terms and conditions hereof until the
earlier of (i) the date Custodian receives such instructions or (ii) the date as
of which the Lender has delivered to Custodian Written Instructions that
Borrower has satisfied all obligations to Lender under the Loan and Security
Agreement and authorizing Custodian to comply with Borrower's Written
Instructions with respect to the Collateral.
9. MISCELLANEOUS
A. AUTHORIZED PERSONS. Lender and Borrower each agrees to furnish to
Custodian a new Schedule I in the event that any Authorized Person ceases to be
an Authorized Person or in the event that other or additional Authorized Persons
are appointed and authorized. Until such new Schedule I is received, Custodian
shall be fully protected in acting under the provisions of this Custodial
Undertaking upon Oral Instructions or Written Instructions from a person
reasonably believed to be an Authorized Person as set forth in the last
delivered Schedule I.
B. ACCESS TO BOOKS AND RECORDS. Upon reasonable request, Lender and
Borrower shall have access to Custodian's books and records maintained in
connection with this Custodial Undertaking during Custodian's normal business
hours. Upon reasonable request, copies of any such books and records shall be
provided to Lender or Borrower at the requesting party's expense (which shall
not be unreasonable).
C. INVALIDITY OF ANY PROVISION. In case any provision in or obligation
under this Custodial Undertaking shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations shall not in any way be affected or impaired thereby,
and if any provision is inapplicable to any person or circumstances, it shall
nevertheless remain applicable to all other persons and circumstances.
D. ENTIRE AGREEMENT/AMENDMENTS. The Custodial Undertaking, together with
the Loan and Security Agreement, represents the entire agreement between
Borrower and Lender with respect to the subject matter thereof and may not be
amended or modified in any manner except by a written agreement executed by the
parties hereto. Borrower and Lender acknowledge that Custodian is not a party to
the Loan and Security Agreement and is not and shall not be deemed to be on
notice of any provision thereof.
E. BINDING AGREEMENT. This Custodial Undertaking shall extend to and shall
be binding upon the parties hereto and their respective successors and assigns;
provided, however, that this Custodial Undertaking shall not be assignable by
any party without the written consent of the other parties.
F. APPLICABLE LAW/JURISDICTION. This Custodial Undertaking shall be
construed in accordance with the laws of the State of New York without regard to
conflict of laws principles thereof. The parties hereby consent to the
jurisdiction of a state or federal court situated in New York City, New York in
connection with any dispute arising hereunder.
G. WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF OR THEREOF.
H. WAIVER OF IMMUNITY. To the extent that in any jurisdiction any party
may now or hereafter be entitled to claim, for itself or its assets, immunity
from suit, execution, attachment (before or after judgment) or other legal
process, each party irrevocably agrees not to claim, and it hereby waives, such
immunity in connection with this Custodial Undertaking.
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I. HEADINGS AND REFERENCES. The headings and captions in this Custodial
Undertaking are for reference only and shall not affect the construction or
interpretation of any of its provisions.
J. COUNTERPARTS. This Custodial Undertaking may be executed in any number
of counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
K. NOTICES. Any notice authorized or required by this Custodial
Undertaking shall be sufficiently given if addressed to the receiving party and
hand delivered or sent by mail, telex or facsimile to the individuals at the
address specified in Schedule III or to such other person or persons as the
receiving party may from time to time designate in writing. Such notice shall be
effective upon receipt.
L. NO THIRD PARTY BENEFICIARIES. In performing hereunder, Custodian is
acting solely on behalf of Lender and Borrower and no contractual or service
relationship shall be deemed to be established hereby between Custodian and any
other person.
M. ACKNOWLEDGEMENT. Notwithstanding that Lender is entering this Custodial
Undertaking through its London branch, Lender acknowledges and agrees that this
Custodial Undertaking is enforceable against Lender as though it were entered
through Lender's head or home office.
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IN WITNESS WHEREOF, the parties hereto have caused this Custodial
Undertaking to be executed by their respective corporate officers, thereunto
duly authorized, as of the 4th day of January, 2001.
SALOMON BROTHERS BANCO SANTANDER CENTRAL
INTERNATIONAL LIMITED HISPANO, S.A.
By: /s/ XXXXX XXX By: /s/ XXXXXX XXXXXX
-------------------------- --------------------------
Name: Xxxxx Xxx Name: Xxxxxx Xxxxxx
Title: Senior Vice President Title: Senior Manager
By: /s/ XXXXX XXXXXX By: /s/ XXX INCHES
-------------------------- --------------------------
Name: Xxxxx Xxxxxx Name: Xxx Inches
Title: MD Treasury Title: Senior Manager
THE BANK OF NEW YORK
By: /s/ XXXX XXXXX
--------------------------
Name: Xxxx Xxxxx
Title: Vice President
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SCHEDULE I
The following individuals have been designated as Authorized Persons of
Lender and Borrower, respectively, in connection with the Custodial Undertaking,
dated as of January 4, 2001.
LENDER
Name Signature
Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxxx
-----------------------------------
BORROWER
Name Signature
Xxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxx
-----------------------------------
Xxxx Xxxxxx
-----------------------------------
SCHEDULE II
Account Information for Delivery to Borrower
Chase Manhattan Bank New York
ABA 021 000 021
For Account: Chase Manhattan Bank London
Favour: Salomon Brothers International Limited
Account No. 9301035789
Instructions for Delivery of Physical Securities
Xxxxxxx Xxxxx Xxxxxx
A/C Xxxxxxx Xxxxx Barney International
Physical Receive & Deliver Department
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
ATTN: Xxxx Xxxxxx or Xxxxx Xxxxxxxx
SCHEDULE III
Address for Notices
To Borrower:
Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Xxxxx Xxxxx
Facsimile: 00-000-000-0000
with a copy to:
Xxxxxxx Xxxxx Barney Holdings Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
To Lender:
Banco Santander Central Hispano S.A.
Xxxxxxxxx Xxxxx
000 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx Xxxxxxx
Facsimile: 20 7332 7412
To Custodian:
The Bank of New York
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx.
Facsimile: 000-000-0000.
Or
Attention: Xxxxxx Xxxxxxxxx
Facsimile: 212-635-7170
APPENDIX I
Form of Instructions
[DATE]
To: The Bank of New York
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx or Xxxxxx Xxxxxxxxx
This notice is given pursuant to Section 4E of the Custodial Undertaking, dated
as of January 4, 2001 (the "CUSTODIAL UNDERTAKING"), by and among Salomon
Brothers International Limited, Banco Santander Central Hispano S.A., acting
through its London branch, and The Bank of New York. Capitalized terms used but
not defined herein shall have the meanings set forth in the Custodial
Undertaking.
The undersigned hereby instructs Custodian to transfer the Collateral specified
below from the Collateral Account to the following account:
Collateral:
-------------------------------------
ABA:
--------------------------------------------
Bank or Depository:
-----------------------------
City:
-------------------------------------------
Account Name:
-----------------------------------
Account Number:
---------------------------------
Very truly yours,
[ ]
By:
-----------------------------------
Name:
Title:
