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Exhibit (j)
CUSTODY AGREEMENT
This Custody Agreement is dated as of December 19, 1996
between XXXXXX XXXXXXX TRUST COMPANY, a New York State chartered trust company
(the "Custodian"), and TROON PARTNERS, L.P., a Delaware limited partnership
(the "Client").
1. Appointment and Acceptance; Accounts. (a) The
Client hereby appoints the Custodian as a custodian of Property (as defined
below) owned or under the control of the Client that is delivered to the
Custodian, or any Subcustodian as appointed below, from time to time to be held
in custody for the benefit of the Client. In this regard, the Client agrees to
deliver or cause to be delivered to the Custodian all Property.
(b) Prior to the delivery of any Property by the Client
to the Custodian, the Client shall deliver to the Custodian each document and
other item listed in Appendix 1. In addition, the Client shall deliver to the
Custodian any additional documents or items as the Custodian may deem necessary
for the performance of its duties under this Agreement.
(c) The Client instructs the Custodian to establish on
the books and records of the Custodian the accounts listed in Appendix 2 (the
"Accounts") in the name of the Client. Upon receipt of Authorized Instructions
(as defined below) and appropriate documentation, the Custodian shall open
additional Accounts for the Client. Upon the Custodian's confirmation to the
Client of the opening of such additional Accounts, or of the closing of
Accounts, Appendix 2 shall be deemed automatically amended or supplemented
accordingly. The Custodian shall record in the Accounts and shall at all times
have general responsibility for the safekeeping of all securities, including
without limitation, shares, stocks, bonds, debentures, notes, mortgages or
other obligations and any certificates, receipts or warrants (collectively,
"Securities"), cash, cash equivalents and other property (all such Securities,
cash, cash equivalents and other property being collectively the "Property") of
the Client that are delivered to the Custodian for custody. Except with
respect to Securities held in custody or deposit accounts maintained with
Subcustodians, securities depositories or clearing agencies, the Custodian
shall at all times hold and physically segregate for the Client all Securities
held by the Custodian hereunder.
(d) The procedures the Custodian and the Client will use
in performing activities in connection with this Agreement are set forth in a
client services guide provided to the Client by the Custodian, as such guide
may be amended from time to time by the Custodian by written notice to the
Client (the "Client Services Guide").
2. Subcustodians. (a) The Property may be held in
custody and deposit accounts that have been established by the Custodian with
(i) one or more domestic banks (as such term is defined by the Investment
Company Act of 1940, the "Act") which are eligible to serve as a custodian for
investment companies under Section 17 of the Act or foreign banks which are
"Eligible Foreign Custodians" (as such term is defined in Rule 17f-5(c)(2) of
the Act), as listed, together with any domestic banks, on Exhibit A, except as
otherwise noted on such Exhibit (the
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"Subcustodians"), as such Exhibit may be amended from time to time by the
Custodian by sixty (60) days prior written notice to the Client, or (ii)
through the facilities of (A) one or more domestic clearing agencies registered
with the Securities and Exchange Commission (the "SEC") under Section 17A of
the Securities Exchange Act of 1934 which acts as a securities depository or
the book-entry system as provided in Subpart O of Treasury Circular Xx. 000, 00
XXX 000, Xxxxxxx X of 31 CFR Part 350 and the book-entry regulations of Federal
agencies substantially in the form of Subpart O or (B) one or more foreign
securities depositories or clearing agencies, as such domestic clearing
agencies, foreign securities depositories or clearing agencies are listed on
Exhibit B, as such Exhibit may be amended from time to time by the Custodian by
sixty (60) days prior written notice to the Client. The Custodian agrees to
deliver any Securities in its or its Subcustodians' possession as directed by
the Client in accordance with Section 7 herein.
(b) The Custodian shall hold Property through a
Subcustodian, securities depository or clearing agency only if (i) such
Subcustodian and any securities depository or clearing agency in which such
Subcustodian or the Custodian holds Property, or any of their creditors, may
not assert any right, charge, security interest, lien, encumbrance or other
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. Any Subcustodian may hold Property in a securities
depository and may utilize a clearing agency, subject to the terms of this
Agreement.
3. Records. With respect to Property held by a
Subcustodian, securities depository or clearing agency:
(a) The Custodian may hold Property for all of its
customers with a Subcustodian in a single account identified as belonging to
the Custodian for the benefit of its customers or with a securities depository
or clearing agency in a single account identified as belonging to the Client or
the Custodian or Subcustodian for the benefit of their customers; provided that
the use of such single account is consistent with paragraph (b) in Section 2
above and that such single account at the Subcustodian shall include only
assets belonging to the customers of the Custodian and such single account at
any securities depository or clearing agency shall include only assets
belonging to the Client, customers of the Custodian or customers of the
Subcustodian, as the case may be;
(b) The Custodian shall identify on its books as
belonging to the Client any Property held by a Subcustodian, securities
depository or clearing agency;
(c) The Custodian shall require that Property held by the
Subcustodian be identified on the Subcustodian's books as separate from any
other property held by the Subcustodian other than property of the Custodian's
customers held solely for the benefit of customers of the Custodian; and
(d) The Custodian shall send the Client a confirmation of
any transfers to or from the Account. Where Securities are transferred to or
from the Account, the Custodian shall also, by book-entry or otherwise,
identify as belonging to the Client a quantity of Securities in a fungible bulk
of securities (i) registered in the name of the Custodian (or its nominee) or
(ii) shown
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on the Client's, Custodian's or Subcustodian's, as the case may be, account on
the books of the securities depository, clearing agency, book-entry system or
the Custodian's account on the books of the Subcustodian and the Custodian
shall promptly send to the Client any report it or its Subcustodian receives
from the appropriate Federal Reserve Bank or clearing agency on its respective
system of internal accounting control. The Custodian shall send to the Client
such reports on its or its Subcustodian's own system of internal accounting
control as the Client may reasonably request from time to time.
(e) In the event the Subcustodian holds Property in a
securities depository or clearing agency, such Subcustodian shall 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 custodian for its customers or
in such other manner as is required by local law or market practice.
Notwithstanding any other provision in this Agreement, no Subcustodian shall be
permitted to deposit Securities in any securities depository or utilize a
clearing agency, incorporated or organized under the laws of a country other
than the United States, other than the Euro-clear System or Centrale de
Livraison des Valeurs Mobilieres S.A., without the written permission of the
Custodian unless such depository or clearing agency operates the central system
for handling of securities or equivalent book-entries in that country or
pursuant to Authorized Instructions.
4. Access to Records. The Custodian shall allow the
Client'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 Client's affairs. The Custodian
shall also obtain from any Subcustodian (and shall 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 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 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 Client's affairs
or to take such other action as the Custodian in its judgment may deem
sufficient to ensure such reasonable access.
5. Reports. The Custodian shall provide from time to
time, but in no event less frequently than monthly, such reports and other
information to the Client and to such persons as the Client directs as the
Custodian and the Client may agree from time to time. Such reports shall
identify the Property in the Accounts and shall include without limitation (i)
the identity of any entity having custody of the Property and (ii) any
transfers of Property to or from the Accounts.
In addition, the Custodian shall furnish annually to the
Client information concerning the Subcustodians employed by the Custodian on
behalf of the Client. Such information shall be similar in kind and scope to
that furnished to the Client initially by the Custodian as of the date of this
Agreement. The Custodian agrees to promptly inform the Client in the event the
Custodian learns of a material adverse change in the financial condition of a
Subcustodian or is notified by any Subcustodian that such Subcustodian's
shareholders' equity has declined, (or there appears to be a substantial
likelihood that it will decline) below the requisite
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shareholder's equity requirements identified in Rule 17f-5 of the Act or any
applicable exemptive order issued by the SEC under such Rule 17f-5.
6. Payment of Monies. Except as provided in Sections 9,
13 and 17, the Custodian shall make, or cause any Subcustodian to make,
payments from monies being held in the Accounts pursuant to Authorized
Instructions as follows:
(a) upon the purchase of Securities for the account of
the Client and then only upon the delivery of such Securities except as may
otherwise be consistent with local custom or market practice in the applicable
jurisdiction where settlement occurs;
(b) for payments to be made in connection with the
conversion, exchange or surrender of Securities;
(c) upon request of the Client that the Custodian
transfer monies being held in the Accounts to another custodian of the Client
or to an account of the Client at a deposit bank;
(d) to partners of the Client in connection with any
distribution to such partners or in connection with the repurchase by the
Client from such partners of interest in the Client;
(e) to third persons in payment of the fees or charges of
such third persons for services provided to the Client or for expenses incurred
in the operation of the Client;
(f) upon termination of this Custody Agreement as
hereinafter set forth in Section 17; and
(g) for any other purpose upon receipt of Authorized
Instructions.
All payments pursuant to this Section 6 shall be made only
upon receipt by the Custodian of Authorized Instructions of the Client;
provided, however, that: (i) the Authorized Instructions for purposes of
subparagraph (b), (c), (d), (e) or (f) of this Section 6 shall be accepted and
valid only if (A) such Authorized Instructions explicitly state that the
related payments are in connection with the transactions contemplated by (b),
(c), (d), (e) or (f) above, as the case may be, in accordance with the
procedures for processing such Authorized Instructions set forth in Exhibit C
hereto and (B) that such Authorized Instructions have been given by an
Authorized Person who is identified on Appendix 3 as an employee of Xxxxxxxxxxx
& Co., Inc. ("Xxxxxxxxxxx"); (ii) any payment in accordance with subparagraphs
(a), (b), (c), (d) or (e) of this Section 6 shall be made only to such
specifically identified accounts as shall have been pre-designated by the
Client to receive such payments, the initial pre-designated accounts as of the
date of this Agreement shall be limited to those accounts at both Xxxxxx
Xxxxxxx & Co. Incorporated and PFPC, Inc. (or any successor administrator of
the Client) identified in accordance with the procedures for processing such
Authorized Instructions set forth in Exhibit C hereto and no additional
accounts shall be considered pre-designated without the written agreement of
each of the parties to this Agreement; and (iii) any payment pursuant to
subparagraph (g) shall be made only if accompanied by a certificate of an
Authorized Person who is identified on Appendix 3 as an employee of Xxxxxxxxxxx
specifying the purpose of such payment and stating that the purpose thereof is
a
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proper one which has been duly authorized by all necessary action of the Client
in accordance with the procedures for processing such Authorized Instructions
set forth in Exhibit C hereto. In the event that it is not possible to make a
payment in accordance with Authorized Instructions of the Client, the Custodian
shall proceed in accordance with the procedures set forth in the Client
Services Guide, except as may be otherwise provided by this Agreement.
The Custodian may act as the Client's agent or act as a
principal in foreign exchange transactions at such rates as are agreed from
time to time between the Client and the Custodian.
7. Transfer of Securities and Non-Cash Property. Except
as provided in Sections 9, 13 and 17, the Custodian shall make, or cause any
Subcustodian to make, transfers, exchanges or deliveries of Securities or other
non- cash Property pursuant to Authorized Instructions as follows:
(a) upon sale of such Securities for the account of the
Client and then only upon receipt of payment therefor except as may otherwise
be consistent with local custom or market practice in the applicable
jurisdiction where settlement occurs;
(b) upon exercise of conversion, subscription, purchase
or other similar rights represented by such Securities;
(c) in the case of warrant, rights or similar securities,
upon the surrender thereof in the exercise of such warrants, rights or similar
securities;
(d) for delivery in connection with any loans of
securities made by the Client, but only against receipt of such collateral as
agreed upon from time to time by the Custodian and the Client;
(e) to partners of the Client in connection with any
distributions in kind to the specifically designated accounts described in
clause (ii) below to such partners to or in connection with the repurchase by
the Client from such partners of interests in the Client in kind;
(f) upon the termination of this Custody Agreement as
hereinafter set forth in Section 17; and
(g) for any other purpose upon receipt of Authorized
Instructions.
Except as provided below, all transfer, exchanges or
deliveries ("Transfers") of Securities or other non-cash Property pursuant to
this Section 7 shall be made only upon receipt by the Custodian of Authorized
Instructions of the Client; provided, however, that: (i) the Authorized
Instructions for purposes of subparagraphs (b), (c), (d), (e) or (f) of this
Section 7 shall be accepted and valid only if (A) such Authorized Instructions
explicitly state that the related Transfer is in connection with the
transactions contemplated by (b), (c), (d), (e) or (f) of this Section 7, as
the case may be, in accordance with the procedures for processing such
Authorized Instructions set forth in Exhibit C hereto and (B) such Authorized
Instructions have been given by an Authorized Person who is identified on
Appendix 3 as a director, principal, officer or employee of Xxxx Asset
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Management Corporation ("MAMC"); (ii) any delivery of Securities or non-cash
Property in accordance with subparagraphs (a), (b), (c), (d) (e) or (f) of this
Section 7 shall be made only to such specifically identified accounts as shall
have been pre-designated by the Client to receive deliveries of Securities or
non-cash Property, the initial pre- designated accounts as of the date of this
Agreement shall be limited to those accounts at both Xxxxxx Xxxxxxx & Co.
Incorporated and PFPC, Inc. (or any successor administrator to the Client)
identified in accordance with the procedures for processing such Authorized
Instructions set forth in Exhibit C hereto and no additional accounts shall be
considered pre-designated without the written agreement of each of the parties
to this Agreement; and (iii) any delivery pursuant to subparagraph (g) of this
Section 7 shall be made only if accompanied by a certificate of an Authorized
Person who is identified on Appendix 3 as a director, principal, officer or
employee of MAMC specifying the purpose of such delivery and stating that the
purpose thereof is a proper one which has been duly authorized by all necessary
action of the Client in accordance with the procedures for processing such
Authorized Instructions set forth in Exhibit C hereto. In the event that it is
not possible to transfer Securities or other non-cash Property in accordance
with such Authorized Instructions, such Transfers shall be made in accordance
with the procedures set forth in the Client Services Guide, except as may be
otherwise provided by this Agreement.
8. Corporate Action. (a) The Custodian shall notify the
Client of details of all corporate actions affecting the Client's Securities
promptly upon its receipt of such information.
(b) The Custodian shall take, or cause any Subcustodian
to take, such action in response to any such corporate action as may be
permissible or necessary only in accordance with Authorized Instructions or as
provided in this Section 8 or Section 9.
(c) Neither the Custodian nor any nominee of Custodian
shall vote any of the Securities by or for the Accounts except in accordance
with Authorized Instructions. The Custodian shall promptly deliver, or cause
to be executed and delivered, to the Client all notices, proxies and proxy
soliciting materials with relation to such Securities, such proxies to be
executed by the registered holder of such Securities (if registered otherwise
than in the name of the Client), but without indicating the manner in which
such proxies are to be voted;
(d) The Custodian shall transmit promptly to the Client
all written information (including, without limitation, pendency of calls and
maturities of Securities and expiration of rights in connection therewith)
received by the Custodian from issuers of Securities being held for the Client.
With respect to tender or exchange offers, the Custodian shall transmit
promptly to the Client all written information received by the Custodian from
issuers of the Securities whose tender or exchange is sought and from the party
(or its agents) making the tender or exchange offer.
(e) In the event the Client does not provide timely
Authorized Instructions to the Custodian with respect to a corporate action,
the Custodian shall act in accordance with the default option provided by local
market practice and/or the issuer of the Securities.
(f) Fractional shares resulting from corporate action
activity shall be treated in accordance with local market practices.
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9. General Authority. In the absence of Authorized
Instructions to the contrary, the Custodian may, and may authorize any
Subcustodian to:
(a) make payments to itself or others for expenses of
handling Property or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to the
Client;
(b) receive and collect all income, cash dividends and
principal with respect to Securities and to credit cash receipts to the
Accounts;
(c) receive and collect all stock dividends, rights and
similar securities issued with respect to any Securities held by the Custodian
hereunder;
(d) 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);
(e) with prior notice to the Client, surrender Securities
at maturity or when called for redemption upon receiving payment therefor;
(f) execute in the Client's name such ownership and other
certificates as may be required to obtain the payment of income from
Securities;
(g) pay or cause to be paid, from the Accounts, 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;
(h) endorse for collection, in the name of the Client,
checks, drafts and other negotiable instruments;
(i) take non-discretionary action on mandatory corporate
actions; and
(j) in general, attend to all nondiscretionary details in
connection with the custody, sale, purchase, transfer and other dealings with
the Property.
10. Authorized Instructions; Authorized Persons. (a)
Except as otherwise provided in Sections 6 through 9, 13 and 17, all payments
of monies, all transfers, exchanges or deliveries of Property and all responses
to corporate actions shall be made or taken only upon receipt by the Custodian
of Authorized Instructions; provided that such Authorized Instructions are
timely received by the Custodian in accordance with the procedures for
processing such Authorized Instructions set forth on Exhibit C. "Authorized
Instructions" of the Client means instructions from an Authorized Person
received by telecopy, tested telex, electronic link or other electronic means
or by such other means as may be agreed in writing between the Client and the
Custodian.
(b) "Authorized Person" means each of the persons or
entities identified on Appendix 3 as amended from time to time by written
notice from the Client to the Custodian. The
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Client represents and warrants to the Custodian that each Authorized Person
listed in Appendix 3, as amended from time to time, is authorized to issue
Authorized Instructions on behalf of the Client and the Client has set forth in
Appendix 3 the specific types of instructions that each such Authorized Person
is authorized to deliver pursuant to this Agreement. Prior to the delivery of
the Property to the Custodian, the Custodian shall provide a list of designated
system user ID numbers and passwords that the Client shall be responsible for
assigning to Authorized Persons. The Custodian shall assume that an electronic
transmission received and identified by a system user ID number and password
was sent by the Authorized Person assigned such user ID number. The Custodian
agrees to provide additional designated system user ID numbers and passwords as
needed by the Client. The Client authorizes the Custodian to issue new system
user ID numbers upon the request of a previously existing Authorized Person.
Upon the issuance of additional system user ID numbers by the Custodian to the
Client, Appendix 3 shall be deemed automatically amended accordingly. The
Client authorizes the Custodian to receive, act and rely upon any Authorized
Instructions received by the Custodian which have been issued, or purport to
have been issued, by an Authorized Person.
(c) Any Authorized Person may cancel/correct or otherwise
amend any Authorized Instruction received by the Custodian, but the Client
agrees to indemnify the Custodian for any liability, loss or expense incurred
by the Custodian and its Subcustodians as a result of their having relied upon
or acted on any prior Authorized Instruction. An amendment or cancellation of
an Authorized Instruction to deliver or receive any security or funds in
connection with a trade will not be processed once the trade has settled.
11. Registration of Securities. (a) In the absence of
Authorized Instructions to the contrary, Securities which must be held in
registered form shall be registered in the name of the Custodian or the
Custodian's nominee or, in the case of Securities in the custody of an entity
other than the Custodian, in the name of the Custodian, its Subcustodian or any
such entity's nominee. The Custodian may, without notice to the Client, cause
any Securities to be registered or re-registered in the name of the Client.
(b) Where the Custodian has been instructed by the Client
to hold any Securities in the name of any person or entity other than the
Custodian, its Subcustodian or any such entity's nominee, the Custodian shall
not be responsible for any failure to collect such dividends or other income or
participate in any such corporate action with respect to such Securities.
12. Deposit Accounts. All cash received by the Custodian
for the Accounts shall be held by the Custodian as a short-term credit balance
in favor of the Client and, if the Custodian and the Client have agreed in
writing in advance that such credit balances shall bear interest, the Client
shall earn interest at the rates and times as agreed between the Custodian and
the Client. The Client acknowledges that any such credit balances shall not be
accompanied by the benefit of any governmental insurance.
13. Short-term Credit Extensions. (a) From time to
time, the Custodian may extend or arrange short-term credit for the Client
which is (i) necessary in connection with payment and clearance of securities
and foreign exchange transactions or (ii) pursuant to an agreed schedule,
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as and if set forth in the Client Services Guide, of credits for dividends and
interest payments on Securities. All such extensions of credit shall be
repayable by the Client on demand.
(b) The Custodian shall be entitled to charge the Client
interest for any such credit extension at rates to be agreed upon from time to
time or, if such credit is arranged by the Custodian with a third party on
behalf of the Client, the Client shall reimburse the Custodian for any interest
charge. 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, or reimbursement for, accrued
interest thereon.
14. Representations and Warranties. (a) The Client
represents and warrants 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 13) are within the
Client's power and authority and have been duly authorized by all requisite
action (corporate or otherwise) of the Client and of the beneficial owner of
the Property, if other than the Client, and (ii) this Agreement (including,
without each extension of short-term credit extended to or arranged for the
benefit of the Client in accordance with Section 13) shall at all times
constitute a legal, valid and binding obligation of the Client enforceable
against the Client 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).
(b) The Custodian represents and warrants that (i) the
execution, delivery and performance of this Agreement are within the
Custodian's power and authority and have been duly authorized by all requisite
action (corporate or otherwise) of the Custodian (ii) 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) and (iii) it will maintain insurance coverage reasonably
comparable to the insurance coverage in place as of the date of this Agreement,
as described in Exhibit B hereto.
15. Standard of Care; Indemnification. (a) The
Custodian shall be responsible for the performance of only such duties as are
set forth in this Agreement 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 be liable to the Client for any loss,
liability or expense incurred by the Client in connection with this Agreement
to the extent that any such loss, liability or expense results from the
negligence or willful misconduct of the Custodian or any Subcustodian.
(b) The Client acknowledges that the Property may be
physically held outside the United States. The Custodian shall not be liable
for any loss, liability or expense resulting from events beyond the reasonable
control of the Custodian or of a Subcustodian, including, but not limited to,
force majeure.
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(c) In addition, the Client shall indemnify the Custodian
and Subcustodians and any nominee for, and hold each of them harmless from, any
liability, loss or expense (including attorneys' fees and disbursements)
incurred in connection with this Agreement, including without limitation, (i)
as a result of the Custodian having acted or relied upon any Authorized
Instructions or (ii) arising out of any such person acting as a nominee or
holder of record of Securities except to the extent such loss, liability or
expenses results from the Custodian's or its Subcustodian's own negligence or
wilful misconduct of the Custodian.
16. Fees; Liens. The Client shall pay to the Custodian
from time to time such compensation for its services pursuant to this Agreement
as may be mutually agreed upon as well as the Custodian's out-of-pocket and
incidental expenses. The Client shall 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 Accounts or any Property held therein. The Custodian is, and any
Subcustodians are, authorized to charge the Accounts 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.
17. Termination. This Agreement may be terminated by the
Client or the Custodian by 60 days written notice to the other, sent by
registered mail. If notice of termination is given, the Client shall, within
30 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 it may have, shall 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 and qualified to serve as the custodian for a registered investment
company under Section 17(f) of the Act 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 have no
obligation to settle any transactions in Securities for the Accounts. The
provisions of Sections 15 and 16 shall survive termination of this Agreement.
18. Investment Advice. The Custodian shall not
supervise, recommend or advise the Client relative to the investment, purchase,
sale, retention or other disposition of any Property held under this Agreement.
19. Confidentiality. (a) The Custodian, its agents and
employees shall maintain the confidentiality of information concerning the
Property held in the Client's account, including in dealings with 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 Client of such request or requirement so that the Client may seek a
protective order or waive any objection to the Custodian's or such
Subcustodian's compliance with this Section 19. In the absence of such a
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waiver, if the Custodian or such Subcustodian is compelled, 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.
(b) The Client shall maintain the confidentiality of, and
not provide to any third parties absent the written permission of the
Custodian, any computer software, hardware or communications facilities made
available to the Client or its agents by the Custodian.
20. Notices. Any notice or other communication from the
Client to the Custodian, unless otherwise provided by this Agreement or the
Client Services Guide, 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 Client is to be
mailed postage prepaid, addressed to the Client at the address appearing below,
or as it may hereafter be changed on the Custodian's records in accordance with
written notice from the Client.
21. Assignment. This contract may not be assigned by
either party without the prior written approval of the other.
22. Miscellaneous. (a) This Agreement shall bind the
successors and assigns of the Client and the Custodian.
(b) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to
its conflicts of law rules and to the extent not preempted by federal law. The
Custodian and the Client hereby irrevocably submit to the exclusive
jurisdiction of any New York State court or any United States District Court
located in the State of New York in any action or proceeding arising out of
this Agreement and hereby irrevocably waive any objection to the venue of any
such action or proceeding brought in any such court or any defense of an
inconvenient forum.
In witness whereof, the parties hereto have set their hands as
of the date first above written.
TROON PARTNERS, L.P.
By: Troon Management, L.L.C.
(General Partner)
By: Xxxxxxxxxxx & Co., Inc.
(Managing Member)
By: /s/ Xxxxx Xxxxxx X'Xxxxx
-------------------------------
Name: Xxxxx Xxxxxx O'Brien
Title: Senior Vice President
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Address for record:
Oppenheimer Tower
One World Financial Center
33rd Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By: /s/ Xxxx Xxxxx
----------------------
Authorized Signature
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APPENDIX 1
Account Documentation
REQUIRED DOCUMENTATION FOR CORE CUSTODIAL SERVICES (INCLUDING TAX RECLAIMS):
CUSTODY AGREEMENT
CLIENT SERVICES GUIDE (INCLUDING APPENDICES)
FEE SCHEDULE / BILLING GUIDE
GENERAL ACCOUNT INFORMATION
US TAX AUTHORITY DOCUMENTATION
LOCAL TAX OFFICE LETTER / APPLICATION LETTER
(NON-UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
FORM 6166 / REQUEST FOR FOREIGN CERTIFICATION FORM
(UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
CERTIFICATION OF BENEFICIAL OWNERSHIP, LEGAL NAME, LEGAL RESIDENCY, TAX STATUS
AND TAX IDS
TAX RECLAIM POWER OF ATTORNEY
PREVIOUS TAX RECLAIM FILING INFORMATION
(PREVIOUS FILERS, ONLY)
UK TAX AUTHORITY DOCUMENTATION
SOPHISTICATED INVESTOR (ACCREDITED INVESTOR) LETTER
(UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
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DOCUMENTATION THAT IS REQUIRED FROM AN ENTITY CLASSIFIED AS TAX-EXEMPT BY ITS
LOCAL TAX AUTHORITY:
UK FORM 4338
(EXEMPT NON-UNITED KINGDOM-RESIDENT BENEFICIAL OWNERS, ONLY)
UK FORM 309A
(EXEMPT UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
FOREIGN EXEMPTION LETTERS / APPLICATION FOR AUSTRALIAN EXEMPTION LETTER
(EXEMPT BENEFICIAL OWNERS, ONLY)
DOCUMENTATION THAT IS REQUIRED ONLY IF YOU WILL USE THE PROXY VOTING SERVICE:
VOTING POWER OF ATTORNEY
DOCUMENTATION THAT IS REQUIRED ONLY IF YOU WILL DEAL IN CERTAIN SECURITIES:
JGB INDEMNIFICATION LETTER
KOREAN SECURITIES POWER OF ATTORNEY
NEW ZEALAND 'APPROVED ISSUER LEVY' LETTER
SPANISH POWER OF ATTORNEY WITH APOSTILE
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APPENDIX 2
Client Accounts
Account Name Account Number Account Mnemonic
------------ -------------- ----------------
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
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APPENDIX 3
Part I - Authorized Signatures
The Custodian is directed to accept and act upon Authorized Instructions
received from any of the following persons or entities:
Telephone/ Authorized
Name Organization Title Fax Signature
---- ------------ ----- ---------- ---------
Authorized by: ___________________________
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Part II - System User ID numbers
The Custodian is directed to accept and act upon Authorized Instructions
transmitted electronically and identified with the following mnemonics and
system user ID numbers for the following activities:
Workstation Sessions
Work Station Account
User I.D. Mnemonic Number TE TCC SL FE CM MA TD
--------- -------- ------ -- --- -- -- -- -- --
Workstation Session Codes
TE Trade Entry
TCC Trade Cancel/Correct
SL Securities Lending
FE Foreign Exchange
CM Cash Movement
MA Mass Authorization
TD Time Deposit
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EXHIBIT A
Subcustodians
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EXHIBIT C
Troon Partners, L.P. Authorized Instructions Procedures:
1. Instructions to make any payments of cash in the form attached hereto as
C-1, respectively, will be faxed to the Custodian by an Authorized Person
identified on Appendix 3 to the Custody Agreement, as an employee of
Xxxxxxxxxxx & Co., Inc. ("Xxxxxxxxxxx") as may be appropriate and consistent
with the terms of the Custody Agreement ("Cash Instructions"). The Custodian
will review each Cash Instruction to ensure that it is consistent with the
forms attached hereto and that the following information is included therein:
a. Purpose has been cited on the fax
b. Fax has been signed by an Authorized Signatory
c. Beneficiary of the cash is in accordance with
standing instructions of the Client
d. Where necessary, a Certificate of Xxxxxxxxxxx
accompanies the instruction
Client must supply standing instructions pre-designating accounts for cash
deliveries at both Xxxxxx Xxxxxxx & Co. Incorporated and PFPC, Inc.
Cash Instructions will be kept on file by the Custodian.
2. The parties have not entered into any securities lending agreement at this
time, and no instructions will be processed under Section 7(d) of the Custody
Agreement. At such time as the parties enter into a securities lending
agreement, this exhibit will be amended to state the requisite procedure for
processing any Authorized Instructions under such Section 7(d).
3. Instructions in the form attached hereto as C-2, to transfer securities and
non-cash property (other than Trade Instructions) will be faxed to the
Custodian by an Authorized Person identified on Appendix 3 to the Custody
Agreement as a director, principal, officer or employee of Xxxx Asset
Management Corporation ("MAMC") as may be appropriate and consistent with the
terms of the Custody Agreement ("Securities Instructions"). The Custodian will
review each Securities Instruction to ensure that it is consistent with the
forms attached hereto and that the following information is included therein:
a. Purpose has been cited on the fax
b. Fax has been signed by an Authorized Signatory
c. Beneficiary of the securities in in accordance
with standing instructions of the Client (where
appropriate)
d. Where necessary, a Certificate of MAMC accompanies the instruction
Client must supply standing instructions pre-designating accounts for
securities deliveries at both Xxxxxx Xxxxxxx & Co. Incorporated and PFPC, Inc.
where appropriate.
Securities Instructions will be kept on file by the Custodian.
20
C-1
XXXXXXXXXXX
CASH MOVEMENT INSTRUCTION FORM
Please Fax Trade Sheets to (000) 000-0000 Trade date ___________
To Confirm Receipt of Trade Sheet Page ____ of ____
Please Contact Xxxx Xxxxxxxx (000) 000-0000
****************************************************************************
* In accordance with the Custody Agreement between Xxxxxx Xxxxxxx Trust *
* Company and Troon Partners L.P. (the "Client"), please process the *
* following transaction for the purpose indicated below: *
****************************************************************************
CHECK ONLY ONE OF THE FOLLOWING:
[ ] A payment in connection with the conversion, exchange or
surrender of securities
[ ] A transfer of Client funds to another custodian of the Client or
to an account of the Client at a deposit bank
[ ] A payment to partners of the Client in connection with any
distribution to such partners or in connection with the
repurchase by the Client from such partners of interest in the
Client
[ ] A payment to third persons in payment of the fees of charges of
such third persons for services provided to the Client or for
expenses incurred in the operation of the Client
[ ] Payment for other purpose (must be accompanied by a Certificate
of Authorized Person, who is an employee of Xxxxxxxxxxx & Co.,
Inc.)
CASH MOVEMENT DETAILS
PAY TO:
Beneficiary:
-------------------------------
Bank Name:
-------------------------------
Clearing Number:
-------------------------------
Beneficiary Account
at Bank
-------------------------------
Standing Instructions (to
be supplied by client)
-------------------------------
TROON PARTNERS, L.P.
By: Troon Management L.L.C. (General Partner)
By: Xxxxxxxxxxx & Co., Inc. (Managing Member)
Signatures (2) By: By:
-------------------- --------------------
Name: Name:
Title: Title:
*******************************************************************************
* This instruction must be signed by two Authorized Persons of Xxxxxxxxxxx *
* & Co., Inc. in accordance with the Custody Agreement *
* C-1 *
*******************************************************************************
21
C-2
XXXX ASSET MANAGEMENT CORPORATION
SECURITIES MOVEMENT INSTRUCTION FORM
Please Fax Trade Sheets to (000) 000-0000 Trade date ____________
To Confirm Receipt of Trade Sheet Page ____ of ____
Please Contact Xxxx Xxxxxxxx (000) 000-0000
****************************************************************************
* In accordance with the Custody Agreement between Xxxxxx Xxxxxxx Trust *
* Company and Troon Partners L.P. (the "Client"), please process the *
* following transaction for the purpose indicated below: *
****************************************************************************
CHECK ONLY ONE OF THE FOLLOWING:
[ ] An exercise of conversion, subscription, purchase or other
similar rights represented by the securities indicated below
[ ] The surrender of the securities indicated below in the exercise
of warrants, rights or similar securities
[ ] A transfer, exchange or delivery of securities or other
non-cash property to partners of the Customer in connection with
any distributions in kind to the specifically designated
accounts described below to such partners or in connection with
the repurchase by the Client from such partners of interests in
kind (as per Section 7(e) of the Custody Agreement)
[ ] The transfer of Securities or other non-cash property for other
purpose (must be accompanied by a certificate of an Authorized
Person)
SECURITY MOVEMENT DETAILS
Action to be taken:
--------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Signature (1)
-------------------------------------------
****************************************************************************
* This instruction must be signed by an Authorized Person of Xxxx Asset *
* Management Corporation in accordance with the Custody Agreement *
****************************************************************************
