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EXHIBIT 9(c)(1)
FOREIGN CUSTODY AGREEMENT
AGREEMENT entered into this 14th day of December 1988, between Banco de
Santander (the "Foreign Custodian"), located at Madrid and ▇▇▇▇▇ Brothers
▇▇▇▇▇▇▇▇ & Co, a Limited Partnership organized under the laws of the State of
New York (the "Custodian").
1. APPOINTMENT AS FOREIGN CUSTODIAN
▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co as agent for its clients (in such agency
capacity being hereinafter referred to as the "Custodian") hereby appoints the
Foreign Custodian to act as a custodian to hold securities (the "Securities")
and funds (the "Cash") belonging to clients of the Custodian (singly a "Client"
and collectively the "Clients") either in its possession or in the possession of
a securities depository or clearing agency as hereafter authorized and the
Foreign Custodian hereby accepts such appointment as Foreign Custodian. The
Foreign Custodian shall establish and maintain on its books one or more custody
accounts for the Custodian as agent for its Clients (singly a "Custody Account"
and collectively the "Custody Accounts") and shall hold exclusively therein
Securities of the Clients. The Foreign Custodian shall also establish and
maintain on its books one or more deposit accounts for the Custodian as agent
for its Clients (singly a "Deposit Account" and collectively the "Deposit
Accounts") and shall hold exclusively therein the Cash of the Clients. All
Securities held or received by the Foreign Custodian or by a Foreign Securities
System (as defined in Section 2(A) (ii) hereof) pursuant to the terms of this
Agreement shall be credited to the Custody Accounts and all Cash held or
received by the Foreign Custodian shall be credited to the Deposit Accounts.
2. RESPONSIBILITIES OF THE FOREIGN CUSTODIAN
The responsibilities of the Foreign Custodian shall include the
following:
(A) Safekeeping of Securities
(i) The Securities in the Custody Accounts and the Cash in the
Deposit Accounts shall be identified in the records of the Foreign
Custodian as being held for the account of the Custodian as agent for
its Clients. The Custodian shall indemnify and hold the Foreign
Custodian and its nominee harmless from liability as the holder of
record. To the extent that the Securities are physically held in the
Custody Accounts, the Securities shall be physically segregated from
the general assets of the Foreign Custodian, the assets of the Foreign
Custodian's other customers and any assets being held for the account
of ▇▇▇▇▇ Brothers in its individual capacity.
(ii) The Foreign Custodian may, with the written approval of
the Custodian, maintain Securities with the Euro-clear System and any
other securities depository or clearing agency which is incorporated or
organized under the laws of a country other than the United States of
America (a
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"Foreign Securities System"); provided that such Foreign Securities
System is supervised or regulated by a government agency or regulatory
authority in such country and operates (a) the central system for the
handling of securities or equivalent book-entry securities in such
country or (b) a transnational system for the central handling of
securities or equivalent book-entry securities. Securities maintained
in a Foreign Securities System may be registered in the name of the
Foreign Custodian, such Foreign Securities System or its nominee;
provided that the Securities are listed in the records of the Foreign
Custodian as being held by it, such Foreign Securities System or the
nominee of such Foreign Securities System as custodian for the
Custodian's Clients and in the records of such Foreign Securities
System as being held by it or its nominee as custodian for the Foreign
Custodian's clients. Securities maintained in a Foreign Securities
System shall be covered by adequate insurance. The Foreign Custodian
shall not maintain Securities with any Foreign Securities System unless
it reasonably believes that Securities maintained with such Foreign
Securities System will not be or become subject to any right, charge,
security interest, lien or claim of any kind in favor of such Foreign
Securities System or its creditors, including a receiver or trustee in
bankruptcy, except for a claim of payment for the safe custody or
administration of the Securities.
(B) Acceptance of Securities
The Foreign Custodian shall accept delivery of all Securities
for the account of the Custodian as agent for Clients except any
Security as to which it has notice of any defect in title or any
encumbrance affecting such Security or (ii) the fact that such Security
is forged or fraudulent or cannot be freely transferred or delivered
without encumbrance in any relevant market. The Foreign Custodian will
not accept any form of receipt instead of Securities unless
specifically instructed otherwise pursuant to Instructions from the
Custodian.
(C) Custody Accounts Transactions
The Foreign Custodian shall transfer, exchange or deliver
Securities only as follows:
(i) upon the sale of Securities and receipt of payment
therefor in accordance with Instructions from the Custodian; provided
that the Foreign Custodian may accept payment and make delivery of
Securities in accordance with the customs prevailing in the market or
among securities dealers; or
(ii) in exchange for or upon conversion into other Securities
or Cash pursuant to a plan of merger, consolidation, reorganization,
recapitalization or readjustment; or
(iii) upon conversion of Securities pursuant to these terms
into other Securities; or
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(iv) upon the exercise of subscription, purchase or other
similar rights represented by Securities; or
(v) as otherwise required pursuant to this Agreement; or
(vi) as otherwise directed pursuant to Instructions from the
Custodian.
(D) Deposit Accounts Payments
The Foreign Custodian shall make payments of Cash from a Deposit
Account only as follows:
(i) for the purchase of Securities pursuant to Instructions
from the Custodian; or
(ii) for the payment of usual and customary taxes, fees or
expenses incurred by the Foreign Custodian in connection with the sale,
purchase, conversion, exchange or surrender of Securities pursuant to
Instructions from the Custodian or their registration in the name of
the Foreign Custodian or that of its nominee; or
(iii) as otherwise directed pursuant to Instructions from the
Custodian.
(E) Duties of the Foreign Custodian
Unless the Foreign Custodian receives contrary Instructions from the
Custodian, it will do the following:
(i) take such steps as may be necessary to secure or otherwise
prevent the loss of rights attached or otherwise relating to
Securities;
(ii) promptly notify the Custodian upon receiving notices,
reports or proxies or otherwise becoming aware of corporate actions
affecting Securities (including, but not limited to, calls for
redemption, mergers, consolidations, reorganizations,
recapitalizations, tender offers, rights offerings, exchange
subscriptions and other offerings);
(iii) collect dividend, interest and other income payments
made and stock dividends, rights and similar Securities paid or issued
with respect to Securities and collect and hold all such payments in
the Deposit Accounts and all such stock dividends, rights and similar
Securities in the Custody Accounts;
(iv) present for payment Securities that are called, redeemed,
or retired or otherwise become payable and all coupons and other income
items that call for payment upon presentation, notify the Custodian of
any amounts payable, but not received, and hold Cash received in the
Deposit Accounts;
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(v) execute such ownership and other certificates as may be
required to obtain payment in respect of Securities;
(vi) exchange interim receipts or temporary Securities in the
Custody Accounts for definitive Securities;
(vii) execute and deliver in accordance with Instructions from
the Custodian all proxies, consents, authorizations and other
instruments pursuant to which the authority of a Client as owner of any
Security may be exercised; and
(viii) take such other actions as the Custodian may request
pursuant to Instructions, including the enforcement on behalf of the
Custodian of any rights which the Foreign Custodian may have against a
Foreign Securities System or any other third party.
(F) Reporting
On the date of any transaction in a Custody Account or a Deposit
Account, the Foreign Custodian will report to the Custodian by telex the
location, transfer and holdings of, and any payment with respect to, the
Securities. In addition, the Foreign Custodian will provide the Custodian with
monthly reports and advices in such format and by such means as may be mutually
agreed upon from time to time. The Foreign Custodian, in addition, will notify
the Custodian immediately in the event that any Cash or Security is lost, stolen
or destroyed, if any Security proves to be forged, fraudulent or invalid, if the
issuer thereof is nationalized or such Security is expropriated or seized by or
pursuant to the authority of any government or governmental authority (including
any court or tribunal), if for any reason such Security cannot be freely
transferred or delivered without encumbrance in any relevant market or if any
right, charge, security interest, lien or claim is asserted by any party against
any Security or Cash or against one or more of the Custody Accounts or Deposit
Accounts.
(G) Inspection and Auditing
To the extent consistent with applicable law and regulations, the
Foreign Custodian shall provide confirmation to the Bank of the contents of the
records maintained pursuant to this Agreement. The Foreign Custodian will
furnish ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ with any reports of the Foreign Custodian's
external auditors in connection with the Foreign Custodian's system of internal
accounting controls as they relate to the Foreign Custodian's responsibilities
under this Agreement and any similar reports received by the Foreign Custodian
from any Foreign Securities System.
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(H) Liability
The Foreign Custodian shall use reasonable care in the performance of
its duties under this Agreement and shall exercise the same degree of care with
respect to the Securities and Cash as it would with respect to its own
Securities and property and that of its clients. The Foreign Custodian agrees to
indemnify the Custodian and the Clients against, and to hold them harmless from,
any loss or liability (including, but not limited to, attorney's fees and
expenses) incurred by the Custodian or any client with respect to any Security
or Cash or any Custody Account or Deposit Account by reason of the negligence
(whether through action or inaction), fraud or willful misconduct of the Foreign
Custodian or any of its officers or employees.
3. REPRESENTATIONS AND WARRANTIES OF THE FOREIGN CUSTODIAN
The Foreign Custodian hereby represents and warrants to the Custodian
that:
(A) The Securities and Cash are not, and will not become, subject to
any right, charge, security interest, lien or claim of any kind in favor of the
Foreign Custodian or its creditors, including a receiver or trustee in
bankruptcy, except for a claim of payment for the safe custody or administration
of the Securities or for funds advanced on behalf of a Client by the Foreign
Custodian;
(B) Beneficial ownership of the Securities is, and will remain, freely
transferable without the payment of money or value other than for safe custody
and administration or for funds advanced on behalf of a Client by the Foreign
Custodian;
(C) The Foreign Custodian does not have, and will not have, any
ownership interest in any Custody Account or Deposit Account or in any
Securities or Cash contained therein and is holding the Securities and Cash for
the exclusive benefit of the Clients and not for ▇▇▇▇▇ Brothers in its
individual capacity;
(D) The Foreign Custodian (i) is a banking institution or trust company
incorporated or organized under the law of a country other than the United
States, (ii) is regulated as such by the government of such country or by an
agency of such government and (iii) has shareholder's equity in excess of U.S.
$200,000,000 or its equivalent in the currency of such country; and
(E) The Foreign Custodian will immediately notify the Custodian of any
development or event (and the circumstances relating thereto) which could render
the Foreign Custodian unable to make any of the foregoing representations and
warranties.
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4. INSTRUCTIONS
The term "Instructions" as used in this Agreement means instructions
from Authorized Persons of the Custodian received by the Foreign Custodian
including, without limitation, instructions given telephone, facsimile
transmission, telegram, teletype, cablegram or other teleprocess or electronic
instruction system which the Foreign Custodian believes in good faith to have
been given by the Custodian or which are transmitted with proper testing or
authentication pursuant to terms and conditions specified in writing by the
Custodian. The term "Authorized Persons" as used herein means individuals whose
names are communicated in writing to the Foreign Custodian from time to time as
being authorized by the Custodian to give Instructions to the Foreign Custodian.
Unless otherwise provided, all Instructions and the designation of all
Authorized Persons shall continue in full force and effect until notice of their
cancellation has been received by the Foreign Custodian. The Foreign Custodian
shall safeguard any testkeys, identification codes or other security devices
with which the Custodian provides it.
5. FEES AND EXPENSES
The Custodian agrees promptly to pay the Foreign Custodian on behalf of
the Clients such compensation, including reimbursement of reasonable expenses,
as may be mutually agreed upon from time to time between the Foreign Custodian
and the Custodian.
6. TERMINATION
(A) This Agreement may be terminated by either party upon sixty days'
prior written notice to the other party.
(B) The Custodian may terminate this Agreement at any time by notice to
the Foreign Custodian effective immediately, if;
(i) The Foreign Custodian shall fail in any material respect
to perform its obligations hereunder; or
(ii) The Foreign Custodian shall be adjudged bankrupt or
insolvent, or there shall be commenced against it a case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect or the Foreign Custodian shall make an assignment for the
benefit of its creditors, consent to the appointment of a receiver or
other similar official for all or any substantial part of its property,
admit in writing its inability to pay its debts as they mature or take
any corporate action in furtherance of any of the foregoing; or
(iii) any change in government or any applicable law, rule or
regulation or any change therein or in the interpretation or
administration thereof shall have or may reasonably be expected to have
an adverse effect on the Custodian or any Client with respect to any
Securities or Cash or this Agreement or the services to be provided
hereunder; or
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(iv) there shall occur a substantial change in the ownership,
or a material adverse change in the condition, of the Foreign Custodian
or in its ability to fulfill its responsibilities under this Agreement;
or
(v) the Foreign Custodian shall no longer be in compliance
with the representations and warranties set forth in Section 3 (D)
hereof.
(C) Upon termination of this Agreement the Foreign Custodian shall
forthwith deliver the Securities and Cash in accordance with Instructions from
the Custodian.
7. MISCELLANEOUS
(A) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their successors and assigns and may not be assigned by
either party without the prior written consent of the other party.
(B) This Agreement may only be amended by an instrument in writing
signed by both parties hereto.
(C) Any notice or other communication given pursuant to this Agreement
shall be sent to the appropriate party at the address listed on the signature
page hereof.
(D) To the extent inconsistent with this Agreement, any rules or
conditions of the Foreign Custodian regarding accounts generally or custody
accounts specifically shall be superseded by the terms of this Agreement and
shall not apply.
(E) This agreement will be construed in accordance with Spanish Law;
provided that this provision shall not limit the right of the Custodian to
commence any proceeding in any other court having jurisdiction under applicable
law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first above written.
BANCO DE SANTANDER ▇. ▇. ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Title: Manager Title: Senior Manager
Banco de Santander ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 75 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Spain USA