CUSTODY AGREEMENT
Custody Agreement, dated between XXXXXX XXXXXXX TRUST COMPANY (the
Custodian and American Skandia Trust (the "Customer").
1. The Customer hereby appoints the Custodian as a custodian of Securities
(as hereinafter defined) owned or held by the Customer and instructs the
Custodian to establish an account identified as belonging to the Customer (the
"Account"). The Custodian shall have general responsibility for the safekeeping
of such Securities and any and all monies and other property (collectively, the
"Property") received by the Custodian or any Subcustodian appointed as described
below for the account of the Customer. It is understood that the specific
procedures the Custodian will use in carrying out its responsibilities under
this Agreement are set forth in the procedures manual attached hereto an Exhibit
A (the "Procedures Manual"), as such Procedures Manual may be amended from time
to time by written agreement between the Custodian and the Customer. The
Customer acknowledges that the Procedures Manual constitutes an integral part of
this Agreement.
2. The Customer agrees that the Property held for the Customer's account
may be physically held outside the United states.
3. The Property held in the Account may be held in custody and deposit
accounts that have been established by the Custodian with one or more domestic
banks qualified under the Investment Company Act of 1940, as amended (the
"Act"), to act as a custodian, or foreign banks meeting the requirements of rule
17f-5 under the Act or through the facilities of one or more clearing agencies
or central securities depositories, permitted by rule 17f-4 under the Act, in
each case approved by the Customer's Board of Director's, as listed on Exhibit C
hereto (the "Subcustodians"), as such Exhibit may be amended from time to time
by written agreement between the Custodian and the Customer. The Custodian may
hold Property for all of its customers with a Subcustodian in a single account
that is identified as belonging to the Custodian for the benefit of its
customers. Any Subcustodian may hold Property in a securities depository and may
utilize a clearing agency. The Custodian shall not be liable for any loss
resulting from the physical presence of any Property in a foreign country
including, but not limited to, losses resulting from nationalization,
expropriation, exchange controls or acts of war or terrorism. Except as provided
in the previous sentence, the liability of the Custodian for losses incurred by
the Customer in respect of Property held by the Custodian for the Customers
account shall not be affected by the custodian's use of Subcustodians.
4. With respect to Property held by a Subcustodian pursuant to
section 3:
(a) The Custodian will identify on its books as belonging to the Customer
any Property held by such Subcustodian for the Custodian's account;
(b) In the event that the Subcustodian holds Property in a securities
depository or clearing agency, such Subcustodian will be required by its
agreement with the Custodian to identify on its books such Property as being
held for the account of the Custodian as a custodian for its customers;
(c) The custodian shall require that Property held by the Subcustodian for
the Custodian's account be identified on the Subcustodian's books as separate
from any other property held by the Subcustodian and as held solely for the
benefit of customers of the Custodian; and
(d) The Custodian will hold Property through a Subcustodian only if (i)
such Subcustodian and any securities depository or clearing agency in which such
Subcustodian holds Property, or any of their creditors, may not assert any
right, charge, security interest, lien, encumbrance or 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.
5. The Custodian shall allow the Customer's accountants reasonable access
to the Custodian's records relating to the Property held by the Custodian an
such accountants may reasonably require in connection with their examination of
the Customer's affairs and/or confirmation of the contents of those records. The
Custodian shall also obtain from any Subcustodian (and will require each
Subcustodian to obtain from any securities depository or clearing agency in
which it deposits Property) an undertaking, to the extent consistent with 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 or confirmation of the contents thereof
as may be reasonably required in connection with the examination of the
Customer's affairs or to take such other action as the Custodian in its judgment
may deem sufficient to ensure such reasonable access.
6. The Custodian shall provide such reports and other information to the
Customer and the Custodian and the Customer may agree from time to time,
including but not limited to an identification of entities having possession of
Property of the Customer and notification of any transfer to or from each
account maintained by a foreign Subcustodian for the Custodian on behalf of the
Customer.
7. The Custodian shall make or cause any Subcustodian to make payments from
monies being held in the Customer's account, except as provided in Section 9
hereof, only
(a) upon the purchase of Eligible Securities for the account of the
Customer and then only upon the delivery of such Eligible Securities;
(b) for payments to be made in connection with the conversion, exchange or
surrender of Eligible Securities in the Customer's account;
(c) upon a request of the Customer that the Custodian return monies being
held in the Customer's account;
(d) upon termination of this Custody Agreement as hereinafter set forth;
and
(e) for any other purpose upon receipt of explicit instructions of the
Customer accompanied by evidence reasonably acceptable to the Custodian as to
the authorization of such payment.
Except as provided in the last sentence of this Section 7, all payments
pursuant to this Section 7 will be made only upon receipt by the Custodian of
Authorized Instructions (as hereinafter defined) of the Customer which shall
specify the purpose for which the payment is to be made. In the event that it is
not possible to make a payment in accordance with Authorized Instructions of the
Customer, the Custodian shall proceed in accordance with the procedures set
forth in the Procedures Manual. Any payment pursuant to subsection (d) of this
Section 7 will be made in accordance with section 14.
8. Eligible Securities hold for the Customer's account will be transferred,
exchanged or delivered by the Custodian or a Subcustodian, except as provided in
Section 9 hereof, only
(a) upon sale of such Eligible Securities for the account of the Customer
and than only upon receipt of payment therefor;
(b) upon exercise of conversion, subscription, purchase or other similar
rights represented by such Eligible Securities;
(c) in the case of warrants, 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
Customer, but only against receipt of such collateral as agreed upon from time
to time by the Custodian and the Customer;
(e) upon the termination of this Custody Agreement as hereinafter set
forth; and
(f) for any other purpose upon receipt of explicit instructions of the
Customer accompanied by evidence reasonably acceptable to the Custodian as to
the authorization of such transfer, exchange or delivery. Except as provided in
the last sentence of this Section 8, all transfers, exchanges or deliveries of
Eligible Securities in the Customer's account pursuant to this Section 8 will be
made only upon receipt by the Custodian of Authorized Instructions of the
Customer which shall specify the purpose for which the transfer, exchange or
delivery is to be made. In the event that it is not possible to transfer
Eligible Securities in accordance with Authorized Instructions of the Customer,
the Custodian shall proceed in accordance with the procedures set forth in the
Procedures Manual. Any transfers or delivery pursuant to subsection (e) of this
Section 8 will be made in accordance with Section 14.
9. In the absence of Authorized Instructions from the Customer to the
contrary, the Custodian may, and it may authorize any subcustodian to:
(a) make payments to itself or others for reasonable 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 Customer;
(b) receive and collect all income and principal with respect to Eligible
Securities in the Customers account and to credit cash receipts to the
Customer's account;
(c) exchange securities when the exchange is purely ministerial (including,
without limitations, the exchange of interim receipts or temporary securities
for securities in definitive form and the exchange of warrants, or other
documents of entitlement to securities, for the securities themselves);
(d) surrender Eligible Securities in the Customer's account at maturity or
when called for redemption upon receiving payment therefor;
(e) execute in the Customer's name such ownership and other certificates as
may be required to obtain the payment of income form Eligible Securities held in
the Customer's account;
(f) pay or cause to be paid, from the Customer's account, any and all taxes
and levies in the nature of taxes imposed on Property in the Customer's account
by any governmental authority in connection with transactions in such Property;
(g) endorse for collection, in the name of the Customer, checks, drafts and
other negotiable instruments; and
(h) in general, attend to all nondiscretionary details in connection with
the sale, purchase, transfer and other dealings with the Property held for the
Customer's account by the Custodian or by a Subcustodian, except as otherwise
directed by the Customer.
10. "Authorized Instructions" of the Customer shall mean instructions
received by tested telex or telecopy or by such other means as may be agreed in
writing between the Customer and the Custodian. Unless otherwise specified in
this Agreement, the Custodian shall be entitled to act, and shall have no
liability for acting, upon any instructions, notice, request, consent,
certificate or other instrument or paper reasonably believed to be genuine and
to have been properly executed by or on behalf of the Customer.
11. Eligible Securities held for the Customer's account which must be hold
in registered form may be registered in the name of the Custodian's nominee or,
in the case of the Eligible Securities in the custody of an entity other than
the Custodian, in the name of such entity's nominee. The Customer agrees to hold
any such nominee harmless from any liability as a holder of record of such
Eligible Securities. The Custodian may without notice to the Customer cause any
such Eligible Securities to cease to be registered in the name of the Customer.
12. The Custodian shall be responsible for the performance of only such
duties as are set forth in this Agreement or the Procedures Manual or contained
in Authorized Instructions given to the Custodian which are not contrary to the
provisions of any relevant law or regulation or of this Agreement or the
Procedures Manual. The Custodian shall hold harmless and indemnify the Customer
from and against any loss, damage, cost, expense, liability or claim arising out
of the Custodian's negligent or willful failure to comply with the terms of this
Agreement or arising out of the Custodian's negligence or willful misconduct.
13. The Customer agrees to pay to the Custodian from time to time such
compensation for its services pursuant to this agreement and may be mutually
agreed upon from time to time and the Custodian's reasonable out-of-pocket or
incidental expenses. The Customer hereby agrees to hold the Custodian harmless
from any liability or any losses from any liability or any losses from any taxes
or other governmental charges, and any expenses related thereto, which may be
imposed, or assessed with respect to the customers account or any Property held
therein and also agrees to hold the Custodian, any Subcustodians, and their
respective nominees harmless from any liability as a record holder of Eligible
Securities in the Customer's account. The Custodian is and any Subcustodians are
authorized to charge any account of the Customer for such items and the
Custodians shall have a lien on any and all Property in the Customer's account
for any amount owing to the Custodian for safe custody or administration from
time to time under this Agreement.
14. This Agreement may be terminated by the Customer or the Custodian by 60
days written notice to the other, sent by registered mail. If notice of
termination is given, the Customer shall, within 15 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 the Customer's account. In either event the Custodian, subject to
the satisfaction of any lien it may have, will transfer such Property to the
person so specified. If the Custodian does not receive such statement the
Custodian, at its election, may transfer such Property to a bank or trust
company established under the laws of the United States or any state thereof to
be held and disposed of pursuant to the provisions of this Agreement or may
continue to hold such 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 an 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 a effect; provided,
however, that the Custodian shall no longer settle any transactions in
securities for the Customers account.
15. The Custodian; its agents and employees will maintain the
confidentiality of information concerning the Property held in the Customer'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 promptly
notify the Customer of such request or requirement so that the Customer may seek
protective order or waive the Custodian's or such Subcustodian's compliance with
this Section 15. In the absence of such a 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.
16. Any notice or other communication from the Customer to the Custodian,
unless otherwise provided by this Agreement shall be sent by certified or
registered mail to Xxxxxx Xxxxxxx Trust Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000, Attention: Vice President, and any notice from the Custodian to
the Customer is to be mailed postage prepaid, addressed to the Customer at the
address appearing below, or as it may hereafter be changed on the Custodian's
records in accordance with notice from the Customer.
17. The Custodian may assign all of its rights and obligations hereunder to
any other entity which is qualified to act an custodian under the terms of this
Agreement and majority-owned, directly or indirectly, by Xxxxxx Xxxxxxx Group
Inc., and upon the assumption of the rights and obligations hereunder by such
entity, such entity shall succeed to all of the rights and obligations of, and
be substituted for, the Custodian hereunder as if such entity had been
originally named an custodian herein. The Custodian shall give prompt written
notice to the Customer upon the effectiveness of any such assignment.
This Agreement shall bind the successors and assigns of the Customer and
the Custodian and shall be governed by the laws of the State of New York.
American Skandia Trust
By: /s/Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Title(s)Treasurer
Address:
Tower Xxx Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By /s/Xxxx Xxxxxxx
Xxxx Xxxxxxx
Authorized Signature
