Exhibit 8
MASTER CUSTODIAN AGREEMENT
Agreement dated as of February 1, 1998, by and between BANKERS TRUST
COMPANY, a bank organized under the laws of New York ("Bankers") as
Custodian, and the AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS HOUSING INVESTMENT TRUST (the "Trust").
W I T N E S S E T H
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WHEREAS, the Trust wishes to retain Bankers as custodian for certain
assets of the Trust and Bankers is willing to accept such custodianship upon
the terms and conditions set forth herein.
NOW, THEREFORE, it is hereby agreed:
1. The Trust hereby appoints Bankers as custodian of the assets
delivered to Bankers hereunder for deposit to the AFL-CIO Housing Investment
Trust Custodian Account established pursuant to this Agreement in accordance
with the power and authorities conferred on the Trustees under the Declaration
of Trust of the Trust.
2. Definitions. Where used in this Agreement, unless the context
otherwise requires or unless otherwise expressly provided:
(a) "Account" means the AFL-CIO Housing Investment Trust
Custodian Account established hereunder.
(b) "Agent" means a sub-custodian designated by Bankers which is
(i) a bank or trust company organized under the laws of the United States of
America or any State thereof; and (ii) the officers, employees and nominees of
Bankers or of the Persons described in clause (i) of this paragraph (b).
(c) "Authorized Person" means any Person or Persons jointly or
severally authorized in a writing delivered to Bankers or an Agent to act on
behalf of the Trust or an Investment Manager, with respect to any action
required or permitted to be taken by the Trust or such Investment Manager
under this Agreement.
(d) "Bankers" means Bankers Trust Company, a bank organized
under the laws of the State of New York, and any successor thereto.
(e) "Business Day" means any day other than (1) a Saturday or
Sunday, or (2) a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to be closed.
(f) "Clearing Corporation" means a corporation as defined in
Section 8-102(3) of the Uniform Commercial Code which is organized for the
purpose of effecting transactions in securities by computerized book entry.
(g) "Federal Reserve Book-Entry System" means the computerized
system sponsored by the United States Department of the Treasury and certain
other agencies and instrumentalities of the United States of America for
holding and transferring securities of the United States government and its
agencies and instrumentalities, respectively, in Federal Reserve Banks,
through banks which are members of the Federal Reserve System or which
otherwise have access to such computerized systems.
(h) "Instructions" means written and manually signed
instructions of any Authorized Person. Instructions shall also include
Instructions Received By Any Other Means provided that the parties hereto
shall have agreed in a manually signed writing to the form, the means of
transmission and the means of identification of such Instructions.
(i) "Instructions Received by any Other Means" shall include,
but shall not be limited to, (i) oral instructions and (ii) instructions
received by computer, electronic instruction system or telecommunications
terminals (including telex, TWXS, facsimile transmission or bank wire).
(j) "Investment Manager" means any bank, insurance company or
registered investment adviser appointed by the Trust, if any, which has the
power to acquire and dispose of the Property with respect to such portions of
the Account as may be designated to Bankers from time to time in the
Instructions of the Trust.
(k) "Participation Certificates" shall mean participation
certificates which evidence the Trust's ownership of an undivided fractional
beneficial ownership interest in a construction and/or permanent mortgage
loan.
(l) "Person" means a natural person, trust, estate, corporation,
association, partnership, joint venture, employee organization, committee,
board, participant, beneficiary, trustee, partner, or venturer, as the context
may require.
(m) "Property" means cash, coin, bonds and coupons appurtenant
thereto, if any, common stocks, preferred stock, securities, participation
certificates, options, warrants, rights, notes, certificates of deposit,
commercial paper, repurchase agreements, letters of credit, property (real,
personal or mixed) or any other investments of any kind or nature, and any
interest, beneficial or otherwise, in a common, collective or commingled trust
or fund maintained by Bankers, or by an Investment Manager or affiliate of an
Investment Manager, investment company, partnership or similar entity.
(n) "Section" means a section of this Agreement.
(o) "Trust" means the American Federation of Labor and Congress
of Industrial Organizations Housing Investment Trust established pursuant to a
Declaration of Trust dated September 19, 1981, as amended.
The plural of any term shall have a meaning corresponding to the singular
thereof as so defined and any neuter pronoun used herein shall include the
masculine or feminine as the context may require.
3. Manner of Custody. All right, title and interest in and to the
Property shall at all times be vested in the Trust. All Property held in the
Account hereunder shall be kept with the same care as Bankers exercises in
respect of its own assets. Bankers agrees that Bankers does not own the
Property or any portion thereof and has no interests in or to the Property,
except as Custodian of the Property. Except as otherwise expressly provided
in Section 4, 10 or 15 herein. Bankers agrees that as long as this Agreement
remains in effect, Bankers shall not take any action with respect to the
Property which jeopardizes, alters, diminishes or impairs the Trust's
interests in the Property.
Bankers is authorized to hold the Property (i) directly in its vaults or
(ii) with a Clearing Corporation or by Federal Reserve Book-Entry System, as
specified by the Trust from time to time in Instructions. Unless and until
the Trust delivers Instructions to Bankers to the contrary, all Property shall
be held as follows (i) all Participation Certificates and other Property
delivered to Bankers in physical (rather than book-entry) form shall be held
by Bankers in its vaults; (ii) all Property delivered to Bankers in book-entry
form (or which the Trust directs Bankers to convert into book-entry form)
shall be held through a Clearing Corporation or the Federal Reserve Book Entry
System, as applicable. To the extent specifically authorized by Instructions,
Bankers may hold Property in bearer from so that title may pass by delivery.
Bankers will, promptly upon request by the Trust, cause any securities held
hereunder to be reissued in its own name as custodian for the Trust or in the
name of the Trust, but costs imposed by the issuer or registrar of such
securities and all taxes (if any) associated with the foregoing will be paid
by the Trust. The Trust shall provide Bankers with instructions from time to
time as to the manner in which Bankers shall accept delivery of Participation
Certificates and other Property delivered in physical form and the documents
and instruments which Bankers shall safekeep with respect to Participation
Certificates and other Property delivered in physical form.
4. Administration of Account. Bankers agrees and is authorized:
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(a) To receive and collect all cash, all payments of principal,
interest, dividends, proceeds from transfer and other payments in respect of
Property held in the Account, including taking prompt action to reclaim the
portion of taxes withheld on such income dividends and interests, if any,
which is reclaimable as a result of certain tax treaties to which the United
States of America is a party;
(b) To credit to the Account amounts equal to all payments of
principal, interest or dividends, proceeds from transfer and all other
payments in respect of Property held in the Account;
(c) On the Instructions of the Trust or an Investment Manager,
to execute or settle transactions to purchase or otherwise acquire Property
for the Account and to debit the Account for the cost of such purchases or to
sell or otherwise dispose of Property against payment therefor and to credit
the Account with such payment;
(d) To exchange securities where such exchange is purely
ministerial (including, without limitation, the exchange of temporary
securities for those in definitive form and the exchange of warrants or other
documents of entitlement to securities for the securities themselves);
(e) To surrender securities at maturity or when advised of
earlier call for redemption; provided, however, that Bankers shall not be
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liable for failure to surrender any security in the Account for redemption
prior to maturity or take other action if notice of such redemption or other
action was not provided to Bankers by the issuer, the Trust, the Investment
Manager, or one of the nationally recognized bond or corporate action services
to which Bankers may subscribe;
(f) To sell or exercise any conversion privileges, subscription
rights, warrants or other options and to make any payments incidental thereto,
and to consent to or otherwise participate in corporate reorganizations,
mergers, consolidations or other changes affecting corporate securities and to
pay any consolidations or other changes affecting corporate securities and to
pay any assessments or charges in connection therewith, but only as may be
specified in Instructions delivered to Bankers; provided, however, where
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warrants, options, tenders or other rights have fixed expiration dates, in
order for Bankers to act with respect to the Account, Bankers shall receive
instructions from the Trust or the Investment Manager at Bankers' offices and
addressed as Bankers may from time to time request for this specific purpose,
by no later than noon (New York City time) at least one bank business day
prior to the last scheduled date to act with respect thereto (or such earlier
date or time as Bankers may specify);
(g) To execute in the Trust's name such ownership and other
certificates as may be required by Regulations of the Internal Revenue Service
or other tax authorities;
(h) With the prior written consent of the Trust, which shall not
be unreasonably withheld or delayed, to designate one or more Agents to act on
its behalf hereunder in the administration of the Account and delegate to such
Agent one or more of the powers and duties undertaken under this Agreement;
(i) Pursuant to instructions of the Trust, to deliver any
Property to or on the order of the Trust;
(j) To mail to the Authorized Person any documents received,
including proxy material, warrants, tender offers, and offering circulars,
with respect to any Property subject to its management hereunder, which if
required shall be signed where appropriate by Bankers without indication of
voting or other preference, so as to enable the Authorized Person to make all
decisions with respect thereto;
(k) To forward a confirmation respecting each transaction to the
Authorized Person (if requested) giving the instruction which resulted in the
transactions, and
(l) Upon the Instructions of the Trust, to transfer assets to
any registered investment company for which an Investment Manager or any
affiliate of an Investment Manager or Bankers provides, for compensation,
custodial, advisory or other services.
It is specifically understood by the Trust that when Bankers is
instructed to deliver Property against payment, delivery of the Property and
receipt of payment may not be simultaneous. The risk, of non-receipt of
payment shall be the Account's and Bankers shall incur no liability therefor.
All credits to the Account of the anticipated proceeds of sales and
redemptions of Property and of anticipated income from Property shall be
conditional upon receipt by Bankers of final payment and may be reversed to
the extent final payment is not received. At the discretion of Bankers, the
Account may make use of such conditional credits. To the extent such credits
do not become unconditional by receipt of final payment, the Account shall
reimburse Bankers upon demand for the amount of such conditional credits so
used. Bankers may, in it discretion, advance funds to the Account to
facilitate the settlement of any trade. In the event of such an advance, the
Account shall reimburse Bankers for the amount thereof.
5. Investments, Investment Managers, Etc. Bankers shall not be
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responsible for the adequacy of the Account to discharge Account liabilities
or for the determination or collection of contributions to or payments from
the Account.
The terms and conditions of appointment and authority of any Investment
Manager shall be the sole responsibility of the Trust. The Trust shall
promptly notify Bankers in writing of the appointment and removal of an
Investment Manager and the portion of the Account's assets subject to the
investment control of such Investment Manager.
Bankers shall not be responsible for managing or investing the Account,
shall be under no duty under this Agreement to and shall not supervise,
recommend or advise the Trust or any Investment Manager with respect to the
investment, purchase, sale, retention or other disposition of any Property
held hereunder and shall not be liable for any losses to the Account as a
result of the acts or omissions of the Trust or the Investment Manager.
Bankers shall not be liable for interest on any cash balances it holds
uninvested in the Account pending receipt of Instructions. In the absence of
Instructions from the Trust or the Investment Manager, Bankers shall have no
power, duty or authority to invest Property held in the Account.
In addition, Bankers shall be under no duty or obligation to review any
investment or reinvestment made or received upon the Instructions of the Trust
or the Investment Manager. Without limiting the generality of the foregoing,
in the case of any transaction, the Person giving the instructions shall have
the entire responsibility for assuring that the transaction does not violate
the prohibitions of any applicable state or federal law or court order or
judgment affecting the administration of the Account. Bankers may from time
to time may consult with legal counsel, who may be counsel to the Trust, and
shall be fully protected in acting upon the advice of counsel.
6. Insurance. Upon the request of the Trust, Bankers shall confirm
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in writing the insurance coverages then maintained by Bankers.
7. Reports of Transactions. Within thirty (30) days following the
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close of each calendar year, Bankers shall file with the Trust, and certify
the accuracy thereof, a written statement of account (the "Statement") showing
all transactions relating to the Account during the period from the end of the
immediately preceding calendar year to the close of the then-ended calendar
year. Within ninety (90) days from the date of receipt of any such Statement,
the Trust shall review such Statement and provide Bankers with a written list
of any exceptions or objections thereto. In addition to the foregoing
Statement, Bankers shall provide the Trust at its request with such other
reports in such form, with such detail (including valuation calculations) and
with such frequency as Bankers and the Trust shall mutually agree. Bankers
may rely for all purposes under this Agreement, upon the latest valuation and
transaction information submitted to it by the Person responsible for the
investment of such Property.
Without limiting the generality of the foregoing, the Trust and Bankers
hereby agree that:
(a) Bankers shall make available to the Trust on-line, "real
time" computer access to information (i.e. raw data) and reports (including
both standard reports and reports customized for the Trust and Account) about
the Account and the Property held therein through Bankers "BT World" system
and technology or such later generation software, programs and technology as
Bankers may develop which provides the same or better information, analysis,
reports and access; and
(b) Bankers shall provide to the Trust, by not later than the
third (3rd) Business Day of each month, the fair market value of each item of
Property in the Account as of the last calendar day of the preceding month.
The Trust acknowledges that Bankers shall retain a reputable pricing source to
calculate and provide such valuations, with at least two other sources to
serve as secondary valuation sources. The Trust and Bankers will agree on the
methodology to be used to prepare such valuations Bankers shall advise the
Trust as to any change in the source of sources to be used to provide such
valuations.
8. Examination of Bank Records. Bankers agrees that during its
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regular banking hours, any officer, employee or representative of the Trust or
any independent accountant(s) selected by the Trust shall be entitled to
examine Bankers' records of the Account and all transactions in and for the
Account, upon furnishing Bankers with written authorization from the Trust
upon one (1) Business Day's prior notice.
9. Proceedings. Bankers shall be under no duty to take any other or
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further action with respect to the Account or the Property other than in
accordance with this Agreement or (without limiting the foregoing) to
prosecute, defend or appear in any action or proceeding with respect to the
Account or any Property unless requested in writing by the Trust and Bankers
is indemnified therefor to its reasonable satisfaction. In any action or
proceeding concerning the administration of the Account. Bankers and the
Trust shall be the only necessary parties, but Bankers or the Trust may bring
in other parties if it so desires.
10. Fees and Expenses. Bankers' fees for acting as agent and
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custodian for the Trust hereunder shall be in such amount as agreed upon from
time to time in a fee letter executed by and between Bankers and the Trust
shall be paid by the Trust at such time or times as are specified in any such
fee letter. In addition, Bankers shall be reimbursed for all (i) brokerage
costs, transfer taxes and similar expenses imposed upon Bankers by third
parties and paid by Bankers in connection with the investment and reinvestment
of securities, (ii) all third party expenses incurred and paid by Bankers in
connection with the acquisition or holding of real or tangible personal
property, (iii) all income taxes or other taxes of any kind whatsoever which
may be levied or assessed under existing or future laws upon or in respect of
the Property which are paid by Bankers, and (iv) all fees for legal services
rendered to Bankers by outside counsel arising out of or under this Agreement
as long as Bankers gives the Trust prior written notice that it intends to
retain such outside counsel. Bankers shall provide invoices supporting all
reimbursements due to Bankers under the preceding sentence. In the event that
the Trust fails to pay any fees due under the first sentence of this section
when the same are due and such failure continues for ten (10) days after
notice from Bankers to the Trust or any reimbursements due to Bankers under
the second sentence of this section are not paid within thirty (30) days after
the invoices supporting such reimbursements are submitted to the Trust Bankers
may charge the Account or any part thereof for all such fees or
reimbursements.
11. Form of Communication. Any instructions from any Authorized
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Person pursuant hereto and all notices and other communications to Bankers or
an Agent shall be effective only when received. Bankers or the Agent shall
be fully protected in acting in accordance with all Instructions purporting to
be from any Authorized Person or a Person authorized to direct Bankers with
respect to a particular matter hereunder that Bankers reasonably believes to
be genuine, correct and to be signed, sent or made by an Authorized Person and
omitting to act in the absence of such Instructions.
Bankers or the Agent shall not be responsible for any errors or
inaccuracies contained in instructions transmitted to it by any Authorized
Person or for any delays or failures in such transmissions caused by equipment
breakdown or unavailability except due to its own negligence, willful
misconduct or bad faith.
12. Evidence of Authority. The Trust and each Investment Manager
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shall provide Bankers or the Agent with a list of the names and signatures of
each Authorized Person empowered to act for it hereunder whenever any action
is required or permitted to be taken by such Person. Such list, until and
unless revised, may be relied upon by Bankers for accuracy and completeness.
13. Notices. Until notice be given in writing to the contrary, all
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Instructions, notice and other communications shall be delivered or sent:
If to Bankers to:
Xx. Xxxxxx Xxxxxx
Managing Director
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
If to the Trust to:
American Federation of
Labor and Congress of Industrial Organizations
Housing Investment Trust
0000 X Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Controller
With a copy to:
American Federation of
Labor and Congress of Industrial Organizations
Housing Investment Trust
0000 X Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
14. Termination of the Agreement. Either party may terminate this
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Agreement for any reason upon sixty (60) days prior written notice to the
other party hereto, in which event such termination shall become effective
upon the sixtieth (60) days after delivery of such written notice. In
addition, in the event of any Bankers Default (as defined below), the Trust
may terminated this Agreement effective immediately upon written notice to
Bankers, with such termination to be effective immediately upon delivery of
such written notice. For the purpose of this Agreement, "Bankers Default"
shall mean:
(a) Bankers shall fail to make any remittance due to the Trust
hereunder as and when such remittance is due;
(b) Bankers shall fail to comply with any Instructions provided
by the Trust with respect to the purchase, sale, assignment, transfer,
delivery of any Property and shall fail to correct or cure such failure within
two (2) Business Days after written notice from the Trust;
(c) Bankers shall fail to perform any of its duties hereunder or
to comply fully with any term or condition of this Agreement, other than as
described in clauses (a) and (b) above, and shall fail to correct or cure such
failure within ten (10) days after written notice from the Trust;
(d) (i)Any state or federal regulatory body with jurisdiction
over Bankers institutes proceedings to place Bankers into receivership or
conservatorship or similar proceedings, or (ii) any state or federal
regulatory body with jurisdiction over Bankers imposes regulatory sanctions
upon Bankers which impair the ability of Bankers, in the reasonable judgment
of the Trust, to fulfill its duties hereunder or (iii) Bankers shall consent
to the appointment of a conservator or receiver of all or substantially all of
its property;
(e) Bankers shall suffer the creation of any lien upon or
security interest in any of the Property held by Bankers hereunder; or
(f) Bankers shall assign, hypothecate, pledge or transfer in any
manner this Agreement or any of Bankers' rights hereunder, or suffer the
creation of any lien upon, or security interest in, or the transfer of, any
Bankers' rights hereunder, by operation of law or otherwise in favor of an
assignee, transferee, pledgee or secured party.
In the event of any termination of this Agreement pursuant to this
Section, on the date that such termination becomes effective, Bankers without
cost to the Trust, shall deliver to the Trust or the firm or entity designated
by the Trust, all Property then held by Bankers hereunder, together with any
assignments, endorsements or other transfer documentation (which may be
without recourse or warranty) as may be necessary in the Trust's judgment to
effect a transfer of record ownership of such Property to the Trust or the
firm or entity designated by the Trust. Additionally, Bankers shall deliver
to the Trust and certify the accuracy thereof, a written statement of account
showing all transactions relating to the Account during the period from the
end of the immediately preceding calendar year to the date of such termination
within thirty (30) days after the end of the calendar month in which such
termination became effective. Notwithstanding any termination of this
Agreement pursuant to this Section. Bankers shall remain bound by the terms
and conditions of this Agreement until it has completed its obligations under
this paragraph.
15. Indemnification. Bankers shall be held harmless by the Trust
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from and against any claim, liability, loss, damage or expense (including, but
not limited to, reasonable attorneys fees incurred in preparing, investigating
or defending any claim) that may be asserted against Bankers arising out of
any action taken or omitted by Bankers pursuant to this Agreement, except due
to its own negligence, willful misconduct or fraud. Any loss, damage or
expense chargeable to the Account under this Section or Section 10 shall be
charged first to the Account, but shall be charged to and remain the liability
of the Trust to the extent not otherwise paid, for any reason, from the
Account.
16. Modification. This Agreement may be amended, supplemented, or
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modified by an instrument in writing signed by the Trust and Bankers.
17. Choice of Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of New York.
18. Counterparts; Etc. This Agreement may be executed in one or more
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counterparts, each of which will be deemed an original. If any provision of
this Agreement is determined to be invalid or unenforceable, the remaining
provisions shall not be deemed for that reason alone to be invalid or
unenforceable.
19. Headings Descriptive. The headings of the several sections and
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subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning of or construction of any provision of this
Agreement.
20. No Implied Duties. The duties and obligations of the parties
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shall be determined solely by the express provisions of this Agreement and no
implied duties or obligations or covenants shall be implied or read into this
Agreement with respect to the parties.
21. Survival. The provisions of Sections 10 and 15 shall survive the
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termination, amendment or restatement of this Agreement or the resignation or
removal of Bankers as Custodian.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
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executed by their duly authorized officers as of any and the year first
written above.
BANKERS TRUST COMPANY
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By:
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Title:
---------------------------------
(Seal)
Attest
---------------------------------
Title
----------------------------
AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL
ORGANIZATION HOUSING
INVESTMENT TRUST
By:
-----------------------------------
Title:
--------------------------------
By:
-----------------------------------
Title:
--------------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the day of 1998, before me personally came
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to me known who being by me duly sworn did depose and say that he/she resides
at that he/she is a Managing Director of BANKERS TRUST
-----------------------
COMPANY, the corporation described in and which executed the above instrument,
that he/she knows the seal of said corporation, that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation and that he/she signed his/her name
thereto by like order.
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Notary Public
STATE OF )
ss.:
COUNTY OF )
On the day of 1998, before me personally came
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to me known who being by me duly sworn did depose and say that he/she resides
at that he/she is a Managing Director of BANKERS TRUST
-----------------------
COMPANY, the corporation described in and which executed the above instrument,
that he/she knows the seal of said corporation, that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation and that he/she signed his/her name
thereto by like order.
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Notary Public
STATE OF )
ss.:
COUNTY OF )
On the day of 1998, before me personally came
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to me known who being by me duly sworn did depose and say that he/she resides
at that he/she is a Managing Director of BANKERS TRUST
-----------------------
COMPANY, the corporation described in and which executed the above instrument,
that he/she knows the seal of said corporation, that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation and that he/she signed his/her name
thereto by like order.
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Notary Public
Xxxxxx X. Xxxxxx Mailing Address:
Managing Director X.X. Xxx 000, Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Trusteed Plans Mail Stop 2202
Tel: 000-000-0000 Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
January 26, 1998
Mr. Xxxxx Xxxxxxxx, Controller
AFL/CIO Housing Investment Trust
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Dear Xxxxx,
Pursuant to paragraph 10 of the Master Custodian Agreement between Bankers
Trust Company and the AFL-CIO Housing Investment Trust (the "Trust") dated
February 1, 1998 (the "Agreement") our fees are as follows:
For providing the services described in the Agreement, including but not
limited to, safekeeping, reporting, accounting, income collection, capital
changes, valuations, trade settlements, meetings and BT world. The Trust
agrees to pay Bankers Trust $300,000 over the next three years in
approximately equal monthly installments. This fee will be guaranteed for a
period of three years. After the expiration of such three year period,
Bankers Trust Company and AFL-CIO Housing Investment Trust shall agree on a
new annual fee, which fee shall not exceed $115,000 per year.
If you have any questions, please feel free to contact me.
Sincerely,
Date: ____________________________
Agreed to by:
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Name:
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Title:
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