EXHIBIT 99(J)
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this 6th day of November, 1998 (the
"Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Custodian"), and ANZ Exchangeable Preferred Trust II (such
trust and the trustees thereof acting in their capacities as such being referred
to herein as the "Trust"), a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del. C. (Sections 3801 et seq.)) and governed by an Amended and Restated
Trust Agreement by and among ML IBK Positions, Inc., as sponsor, the Trustees
named therein, Xxxxx Xxxxxxxxx, as depositor and the Holders from time to time,
to be dated as of November 6, 1998 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management investment
company, as defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), created for the purposes of issuing Trust Units
Exchangeable for Preference SharesSM ("TrUEPrSSM") in accordance with the terms
and conditions of the Trust Agreement and investing the proceeds thereof in and
holding Mandatorily Redeemable Debt Securities due 2048 (the "Debt Securities")
issued by Aldobrandini (UK) Company, a special purpose unlimited liability
company incorporated under the laws of England and Wales and domiciled in the
United Kingdom (the "U.K. Company");
WHEREAS, the Trust desires to engage the services of the Custodian to
assume certain responsibilities and to perform certain custodial duties for the
Trust; and
WHEREAS, the Custodian is qualified and willing to assume such
responsibilities and to perform such duties, subject to the supervision of the
Trust, on the terms and conditions hereinafter set forth.
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, to act as agent of the Trust and as custodian of all of the
property at any time owned or held by the Trust, including but not limited to,
the Debt Securities, the ADRs Purchase Contract, any cash and any other property
at any time owned or held by the Trust (collectively, the "Assets") on the terms
and subject to the conditions set forth in this Agreement. The Custodian
acknowledges
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/SM/ Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
and agrees that in its capacity as Custodian it will hold the Debt
Securities as common depositary to Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") and Cedel
Bank, societe anonyme ("Cedel"). The Trust hereby deposits the Assets as of the
date hereof with the Custodian and the Custodian hereby accepts such into its
custody, and the Trust shall deliver to the Custodian all of the 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 has been approved by the Trust, including but not limited
to, The Depository Trust Company, the Federal Reserve Book Entry System,
Euroclear and Cedel. 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 Section 4 below and
then only for the account of the Trust. The Assets shall not be subject to any
lien, security interest, encumbrance, right of set-off 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 accountant 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 accountant 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 reasonable actions
with respect to the Assets as directed in writing by the Trust or by any officer
of the Administrator duly authorized by the Trustees to give written
instructions on behalf of the Trust and named in such certified resolutions of
the Trustees, 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
by or on behalf of the Trust, 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 Trust pursuant hereto; provided that this provision shall
not protect the Custodian against any liability to which it would otherwise be
subject by reason of its willful
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misfeasance, bad faith or gross negligence in the performance of its duties, or
its reckless disregard of its obligations and duties 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 Trust, other than as expressly
provided for herein. The Custodian shall not be responsible for or in respect
of the validity of any signature by or on behalf of the Trust.
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 reasonable pecuniary costs of the Custodian from such
actions shall be expenses which are reimbursable pursuant to Section 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
reasonable expenses, including reasonable 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 Trust, not less than 60 days before the date specified in such
instrument when, subject to subsection (b) of this Section 9, such resignation
is to take effect. Upon receiving such notice of resignation, the Trust shall
use its reasonable efforts promptly to appoint a successor Custodian (and, for
as long as the Debt Securities are held in either Euroclear or Cedel, authorized
by either of Euroclear or Cedel, as appropriate, to act as its depositary) 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 Trust, 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, provided that, for as long as the Debt Securities are held in either
Euroclear or Cedel, such successor Custodian is an institution authorized by
either of Euroclear or Cedel, as appropriate, to act as its depositary.
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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 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, provided that, for as long as the Debt Securities
are held in either Euroclear or Cedel, such successor Custodian is an
institution authorized by either of Euroclear or Cedel, as appropriate, to act
as its depositary. 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 resigning Custodian; and
the resigning 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 resigning 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, provided
that such corporation meets the requirements set forth in the Trust Agreement
and provided that, for as long as the Debt Securities are held in either
Euroclear or Cedel, such successor Custodian is an institution authorized by
either of Euroclear or Cedel, as appropriate, to act as its depositary.
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 reasonable expenses and disbursements incurred
hereunder, in each case 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.
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15. INDEMNIFICATION. The Trust shall, to the fullest extent permitted by
applicable law, indemnify and hold the Custodian harmless from and against any
loss, damages, liability or claim incurred by reason of any inaccuracy in
information furnished to the Custodian by the Trust, or any act or omission in
the course of, connected with or arising out of any services to be rendered
hereunder, and any reasonable cost or expense (including the reasonable costs of
investigation, preparation for and defense of legal and/or administrative
proceedings related to a claim against it and reasonable attorneys' fees and
disbursements) incurred in connection with any such loss, damages, liability or
claim, provided that the Custodian shall not be indemnified and held harmless
from and against any such loss, damages, liability, claim or reasonable cost or
expense 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. Notwithstanding the foregoing, it is understood that (i)
the Trust shall not, in respect of the legal expenses of the Custodian in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel), (ii) the Trust shall not be liable for any settlement of
any proceeding effected without the prior written consent of the Trust, but if
settled with such consent or if there be a final judgment for the third party
claimant, the Trust agrees to indemnify the Custodian from and against any loss
or liability by reason of such settlement or judgment, (iii) the Trust may not
pay any amounts to the Custodian under this Section 15 from the Trust Estate and
(iv) the Trust shall not be liable for any loss, damages, cost, liability or
claim or any expense (including the reasonable costs of investigation,
preparation for and defense of legal and/or administrative proceedings related
to a claim against the Custodian and reasonable attorneys' fees and
disbursements) in an amount in excess of the amount received by the Trust under
the Trust Expense Agreement and the Expense and Indemnity Agreement in
connection with such loss, damages, cost, liability or claim. 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
dissolution of the Trust or the appointment of a successor Custodian.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
19. NOTICES. All notices and other communications given by any party under
this Agreement shall be directed as follows (or to such other address for a
particular party as shall be specified by such party in a like notice given
pursuant to this Section 19):
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The Trust: ANZ Exchangeable Preferred Trust II
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Custodian: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery in the United States) to the
offices set forth above, in which case they shall be deemed received on the
first Business Day by which delivery shall have been made to said offices, (ii)
transmitted by any standard form of telecommunication to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which a standard confirmation that such transmission occurred is received by the
transmitting party (unless such confirmation states that such transmission
occurred after 5:00 P.M. on such first Business Day, in which case delivery
shall be deemed to have been received on the immediately succeeding Business
Day), or (iii) sent by certified or registered mail, return receipt requested to
the offices set forth above, in which case they shall be deemed received when
receipted for unless acknowledgment of receipt is refused (in which case
delivery shall be deemed to have been received on the first Business Day on
which such acknowledgment is refused). "Business Day" means each Monday,
Tuesday, Wednesday, Thursday or Friday which is not a day on which banking
institutions in Sydney, Australia, New York, New York or the ANZ Borrower's
Principal Place of Business are authorized or obliged by law or executive order
to close.
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 permitted 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, cancelled 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 Trust 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.
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22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but 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.
ANZ EXCHANGEABLE PREFERRED TRUST II
By:_____________________________________
Xxxxxx X. Xxxxxxx
Managing Trustee
THE BANK OF NEW YORK
By:_____________________________________
Name:
Title:
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