CUSTODIAN ACCOUNT AGREEMENT
_______________________,19___
Bankers Trust Company
New York, New York
Gentlemen:
We, the undersigned, hereby request that you act as our Custodian to
hold and dispose of all securities or similar property and cash deposited with,
delivered to or received by you as such Custodian. For the purposes of this
agreement, any securities now held by you for us under a prior custody agreement
with you shall be deemed to have been deposited hereunder. Custody by you of
securities shall be deemed to have begun immediately upon receipt by you of any
such securities and shall continue until you shall have surrendered such
securities to, or in accordance with, the instructions or directions of the
undersigned, subject to the following terms and conditions:
1. (a) You will hold the securities in one or more Custodian
accounts (whether one or more, the "Custodian Account") which you will open and
maintain in such name(s) as may be agreed upon from time to time with us. You
shall keep the securities received by you hereunder separate and distinct from
securities documents and property owned by yourself or others to the extent that
each and every item received by it hereunder shall at all times be identified
and identifiable as the property solely of the undersigned.
(b) The term "hold" shall include your authority to deposit any
part, or all of the aforesaid property, with the Depository Trust Company, the
Participants' Trust Company, the Federal Reserve Book Entry System, or any other
centralized securities depository system, whether presently or hereafter
organized, in which you participate (hereinafter called "CSDS"). In holding any
such deposits, you shall at all times keep complete and accurate records to the
end that all securities of ours may be identifiable (i) by the issuer or obligor
of each security, (ii) by the issue or distinguishing characteristics (such as
due date and
percentage rate of return based on face value) of such security, and (iii) by
the securities depository or safekeeping facility with which each security is
placed. Placement of our securities by you into a CSDS shall neither augment nor
diminish your responsibilities and rights under any paragraph of this Agreement.
(c) Subject to the aforesaid provision, securities are to be
held in our Custodian Account with you in coupon bearer form; with respect to
securities which are received in registered form, you are authorized to
reregister such Securities in the name of your nominee, or the nominee of the
CSDS, unless alternate registration instructions are furnished.
(d) In consideration of your registration of any stocks,
bonds, securities and other property in the name of your nominee, we agree to
pay on demand to you or your nominee the amount of any loss or liability for
stockholders' assessments, or otherwise, claimed or asserted against your
nominee by reason of such registration.
(e) Should any securities which are forwarded to you by us and
which are subsequently deposited with any CSDS not be deemed acceptable for
deposit by the CSDS for any reason, we agree to immediately furnish you with
like securities in acceptable form or, in the alternative, you are authorized to
charge our account for the cost of replacing such securities and for any other
fees or charges an may be payable to such CSDS as a result of such unacceptable
deposit.
(f) You are authorized to accept, act upon and rely upon all
signed, written instructions given by one or more of our officers, employees or
agents as are designated in any certificate of resolutions or other acceptable
document delivered to you by us and amendments thereto from time to time. In
addition, you may rely on instructions received by telephone, telex, TWX,
facsimile transmission, bank wire or other teleprocess acceptable to you which
you believe in good faith to have been given by such authorized person or which
are transmitted with proper testing or authentication pursuant to terms and
conditions which you may specify. You may also rely on instructions transmitted
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electronically through your POL*ARIS communications system, or any similar
electronic instruction system acceptable to you. You shall incur no liability to
us or otherwise as a result of any act by you in accordance with instructions on
which you are authorized to rely pursuant to the provisions of this paragraph.
(g) In complying with instructions for delivery of eligible
transactions, you will make deliveries through (i) the Federal Reserve System,
pursuant to Subpart O of Treasury Department Circular #300 (31 Code of Federal
Regulations Part 306), and operating circulars of the Federal Reserve Bank of
New York, both as amended from time to time, or (ii) the facilities of any CSDS
pursuant to Section 8-320 of the New York Uniform Commercial Code and the rules
and procedures of any such CSDS and any subsequent amendments thereto.
(h) We acknowledge familiarity with the current securities
industry practice of delivering physical securities against later payment on
delivery date. Notwithstanding our instructions to deliver securities against
payment, you are authorized to make delivery against a temporary receipt
(sometimes called a "window ticket") in lieu of payment. You agree to use your
best efforts to obtain payment therefor during the same business day, but we
confirm our sole assumption of all risks of payment for such deliveries. You may
accept checks, whether certified or not, in payment for securities delivered on
our instruction, and we assume sole responsibility for the risks of
collectability of such checks.
2. Unless instructed otherwise in writing, the proceeds of sales,
redemptions, collections, and other receipts, and dividend and interest income,
will be credited to our account in accordance with the schedule specified in
your Standards Manual. As used herein, the term "account" shall be deemed to
mean any one or more of our deposit accounts with you maintained at the time of
the transaction referred to.
3. (a) In no event shall you be responsible to ascertain or to take any
action concerning any maturities, puts, calls, conversions, exchanges,
reorganizations,
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offers, tenders or similar matters relating to our securities held in the
Custodian Account, other than to transmit to us all information relating to any
such action received by you from any offers or otherwise. We agree that our
instructions to you with respect to tender offers must be in writing (if oral,
then to be confirmed next day in writing) and delivered to you within sufficient
time for you to act thereon if any action by you is required. As used herein,
"sufficient time" shall mean at any time up to the last permissible date for
action by you established by your written notice to us, and you shall have no
liability to us for your failure to act upon our instructions received by you
any time after such date.
(b) All proxies and material pertaining thereto received by you
in connection with stocks, bonds, securities and other property held in the
account, whether physically by you or on deposit with the CSDS, are to be
forwarded to us.
(c) Should any securities held in the CSDS be called for a
partial redemption by the issuer of such securities, you are authorized to
accept allocations as determined pursuant to the program therefor in effect at
such CSDS or, in the absence of any such program, in your sole discretion to
allot the called portion to the respective holders in any manner deemed to be
fair and equitable in your judgment.
(d) Recapitalizations and stock distributions will be credited
to the account within five (5) business days after the Stock Exchange due xxxx
redeemable date (ten [10] business days after payable date) in order to comply
with the normal course of settling our position at the CSDS and sufficient time
to allocate theme shares to the Custodian Account. Stock dividends will be
credited on payable date.
(e) You are authorized to exchange temporary for definitive
certificates, and old certificates for new or overstamped certificates
evidencing a change therein.
4. (a) With respect to foreign securities or securities for which
adequate financial information is not readily available, your responsibility is
expressly limited to
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safekeeping. While it is expected that you will collect dividends, interest, and
other income, and notify us of any call for redemption, offer of exchange, right
of subscription, reorganization, or other proceeding affecting such securities,
it is understood that you shall be responsible for any internal failure or delay
in crediting collections or giving notice, but shall not be responsible for any
failures or delays in collection or notice incurred outside of the bank.
(b) Collections of monies in foreign currency, to the extent
possible, are to be converted into U.S. dollars at customary rates. All risk and
expense incident to such foreign collections and conversions is for our account,
and you shall have no responsibility for fluctuations in exchange rates
affecting such collections or conversions.
5. We acknowledge our responsibility as a principal for all of our
obligations to you arising under or in connection with this Agreement,
notwithstanding that we may be acting on behalf of other persons, and we warrant
our authority to deposit in the Custodian Account and any accounts of ours any
securities and funds which you or your agents receive therefor, and to give
instructions relative thereto. We further agree that you shall not be subject
to, nor shall your rights and obligations with respect to this Agreement and the
Custodian Account be affected by, any agreement between us and any other person.
You assume no liability to any customer of ours or to any beneficiary for which
we may be acting as agent, bailee or fiduciary.
6. You shall give the securities that come into your possession under
this Agreement the same physical care and safeguards as are afforded similar
property owned by you; provided, however, your responsibility hereunder is
limited to losses occasioned directly by the negligence or willful misconduct of
your employees, or by robbery, burglary or theft (while the securities are in
your physical possession), to the extent of the market value of the securities
at the date of the discovery of such loss. With respect to any securities which
you deliver for us to a third party, and with respect to such delivery, you
shall be deemed no more than an "intermediary" as defined in Section 8-306(3) of
the New York Uniform Commercial Code. You may,
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at your option, make arrangements for insuring yourselves against any loss from
any cause, but you shall not be under any obligation to insure for our benefit.
We agree to defend and indemnify you and to hold you harmless from and
against any and all liabilities, losses, damages, claims, costs (including fees
and disbursements of counsel selected by you), and every other expense of any
nature (collectively, "liabilities") incurred by you arising out of or resulting
from your performing your obligations hereunder, except to the extent that such
liabilities shall be due to your negligence or willful misconduct. In no event
shall you be liable for any indirect, special or consequential damages.
7. You may charge the Cash Account tied to the Custodian Account for
all costs incurred by you in connection with your receipt of securities for the
Custodian Account. You are not obligated to effect any transaction or make any
payment in connection therewith unless there are sufficient available funds on
deposit in our account, or funds have otherwise been made available to you to
your satisfaction. The amount by which payments, made by you on our behalf with
respect to property in, or to be received for, the Custodian Account, or with
respect to other transactions pursuant to this Agreement, exceed available funds
and result in an account overdraft shall be deemed a loan from you to us in the
amount of such overdraft, payable on demand and bearing interest at the rate
customarily charged by you on similar loans. We confirm that all such loans
shall be based on your sole determination to make the underlying advance in each
came.
8. You agree to provide us with regular monthly reports of transactions
and holdings in the Custodian Account, or at such more frequent intervals as you
and we may mutually agree on. We shall have the right to physically examine the
securities held in your vault at reasonable times, provided that a
representative of yours shall accompany us upon such examination. We may meet
with the auditors of a Securities Depository to review and examine the
safeguards and controls which protect the assets held by the Securities
Depository in a fungible mass for all its participants. You will assist us in
obtaining appropriate audit comfort letters which are
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made available by a CSDS attesting to its safeguards and controls. In addition,
we understand that we have the option to elect to participate in your POL*ARIS
Service (an on-line system) which provides us, on a daily basis, with the
ability to view on-line or to print on hard copy (i) all transactions involving
the delivery in and out of securities on a free or payment basis; (ii) payments
of principal and interest or dividends; (iii) pending transactions and fails;
and (iv) schedules of Custodian Account holdings plus the market values thereof.
You have advised us that it is your expectation that the POL*ARIS Service is
constantly being tested and explored for the addition of new and valuable
services in the near future.
You have furnished us with a separate fee schedule applicable to the
POL*ARIS Service and, in the event we subscribe thereto, we shall be fully
responsible for the security of our connecting terminal, access thereto and the
proper and authorized use thereof, and our initiation and application of
continuing effective safeguards. In this connection, except for any instance
involving your own negligence or misconduct, we agree to defend, indemnify you
and to hold you harmless from and against any and all liabilities, losses,
damages, costs, including attorneys' fees and every other expense of every
nature incurred by you as a result of any improper or unauthorized use of such
terminal by us or by others on our premises.
To the extent that the POL*ARIS Service shall include market values of
our Custodian holdings, we acknowledge receipt from you of your advices that you
now obtain and will in the future obtain such information from outside sources
(presently Mellon Invest Data Corporation and Telstat) which you deem to be
reliable, and confirm that you do not verify nor represent or warrant either the
accuracy or the completeness of any such information furnished or transacted by
or through the POL*ARIS Service.
9. (a) You shall be under no duty to take any action with respect to
any property held in any Custodian Account except to the extent of any properly
issued instructions by us.
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(b) In the event that you agree, at our request, to appear on
our behalf and prosecute or defend any legal or equitable proceeding, we agree
to indemnify you for any and all costs and expenses.
(c) You are authorized and empowered in our name and on our
behalf to execute any certificates of ownership or other reports, declarations
or affidavits which you are or may hereafter be required to execute and furnish
under any regulation of the Internal Revenue Service, or other authority of the
United States, so far as the same are required in connection with any property
which is now or may hereafter be held in the Custodian Account, claiming no
exemptions on our behalf. We agree to notify you immediately in writing of any
material change in our status which may impact on any such certificates, reports
or other required documents or on the contents thereof.
l0. We agree to pay you as compensation for your services hereunder
your applicable fees in effect from time to time of which you will provide us
with notice in writing.
11. By your acceptance of this Agreement we agree to, and do hereby,
indemnify you and hold you harmless from any and all loss, liability (excluding
any liability occasioned by the negligence or willful misconduct of your
employees, or by robbery, burglary or theft of any securities while in your
physical possession), claims, damages or expense (including, without limitation,
charges and internal charges, fees and disbursements of counsel) arising from
your performance of your services as Custodian hereunder, including arising out
of a settlement of any dispute, prior to your being named as a defendant in any
litigation or proceeding and whether or not you are a party to such litigation
or proceeding.
12. In the event of the termination of this Agreement at our request,
you shall have the right to transfer to us all stocks, bonds, securities and
other property registered in the name of your nominee, and you shall charge all
taxes and other expenses incident to such transfer to our account. If
termination of this Agreement is made at your request, the above described
charges shall be at your expense.
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13. This Agreement contains the whole of the understanding between us,
and no provision hereof shall be modified or altered except in writing signed by
both of us.
14. This Agreement shall be governed by the laws of the State of New
York, and shall be binding upon us and upon our successors and assigns and shall
inure to your benefit and your successors and assigns, and shall be deemed
continuing until terminated by either of us upon at least sixty (60) days prior
written notice to the other. We shall have a period of thirty (30) days from the
date of receipt of the Agreement to make any objection and claim, and failure to
do so within the thirty day period shall be deemed by the parties hereto to
constitute accord and satisfaction.
15. The federal and state courts within the State of New York shall
have sole and exclusive jurisdiction over any claim or dispute which may arise
hereunder or which either of us may allege or assert against the other and/or
any transactions contemplated to be covered hereunder.
16. If any provision of this Agreement is deemed to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other provisions of this Agreement.
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To indicate your acceptance of the foregoing, we have executed two (2)
copies of this Agreement and enclose same with the request that you sign them in
the space provided, whereupon it shall become our Agreement, binding upon each
of us as of the date first above written. Please return one signed copy to us.
Sincerely yours,
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(Account Title)
By:
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(Authorized Signature)
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(Title)
00000 Xxxxx Xxxxxxxxxxxx Xx., Xxxxxx. XX 00000
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(Principal Office Address)
AGREED TO AND ACCEPTED:
BANKERS TRUST COMPANY
By:
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(Authorized Signature)
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(Title)
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INFORMATION DISCLOSURE NOTICE
AND INSTRUCTION
As authorized by the 1985 Shareholders Communication. Act, the
Securities and Exchange Commission issued rules governing the distribution of
proxy materials to and disclosure of information about shareholders whose
securities are registered in a bank nominee name. Under these rules, beneficial
owners of securities whose accounts were opened: (i) after December 28, 1986,
will be deemed to have consented to disclosure of their positions to issuers
unless the beneficial owner has affirmatively objected to such disclosure; and
(ii) on or before December 29, 1986, must affirmatively consent thereto before
such disclosure must be made. According to these rules, the issuing company
would be permitted to use your name for "corporate communication" purposes only.
NO YES
The undersigned elects not to The undersigned elects to have
have (his) (her) (its) name, (his) (her) (its) name,
address, and securities address, and securities
positions disclosed to any of positions disclosed to any of
the companies in which the the companies in which the
undersigned owns securities undersigned owns securities
that are registered in that are registered in
"nominee" or "street" name. "nominee" or "street" name.
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ACCOUNT NAME DATE
