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EXHIBIT 10.9.3
BANKERS TRUST COMPANY
CUSTODIAN AGREEMENT
US CUSTODY
AGREEMENT dated as of DECEMBER 1, 2000 between BANKERS TRUST COMPANY
(the "Custodian") and REDWOOD TRUST, INC. (the "Customer").
1. Employment of Custodian. The Customer hereby employs the Custodian as
custodian of all assets of the Customer which are delivered to and accepted by
the Custodian (the "Property") pursuant to the terms and conditions set forth
herein. For purposes of this Agreement, "delivery" of Property shall include the
acquisition of a security entitlement (as that term is defined in the New York
Uniform Commercial Code ("UCC)) with respect thereto. Without limitation, such
Property shall include stocks and other equity interests of every type,
evidences of indebtedness, other instruments representing same or rights or
obligations to receive, purchase, deliver or sell same and other non-cash
investment property of the Customer ("Securities") and cash from whatever source
and in whatever currency ("Cash"), provided that the Custodian shall have the
right, in its sole discretion, to refuse to accept as Property any property that
the Custodian considers not to be appropriate or in proper form for deposit for
any reason. The Custodian shall not be responsible for any property of the
Customer held or received by the Customer or others and not delivered to and
accepted by the Custodian or any of its Subcustodians (as that term is defined
in Section 4 below) as hereinafter provided.
2. Custody Account. The Custodian agrees to establish and maintain one
or more custody accounts on its books in the name of the Customer (the
"Account") for any and all Property consisting of Securities from time to time
received and accepted by the Custodian or any of its Subcustodians for the
account of the Customer. Any and all Property consisting of Cash from time to
time received and accepted by the Custodian or any of its Subcustodians for the
account of the Customer shall be credited to one or more demand deposit accounts
or custody cash accounts of the Customer (the "Cash Account") on the books of
the Custodian. The Customer acknowledges its responsibility as a principal for
all of its obligations to the Custodian arising under or in connection with this
Agreement, notwithstanding that it may be acting on behalf of other persons, and
warrants its authority to deposit in the Account or Cash Account, as the case
may be, any Property received therefor by the Custodian or its Subcustodian and
to give, and authorize others to give, instructions relative thereto pursuant to
the terms of this Agreement. The Customer further agrees that the Custodian
shall not be subject to, nor shall its rights and obligations under this
Agreement or with respect to the Account or the Cash Account, as the case may
be, be affected by, any agreement between the Customer and any other person.
The Custodian shall hold, keep safe and protect as custodian for the
Account, on behalf of the Customer, all Property in the Account and the Cash
Account and to the extent such Property constitutes financial assets for
purposes of the New York UCC, shall maintain those financial assets as security
entitlements in favor of the Customer. Subject to the provisions of the next
paragraph relating to Securities issued outside of the United States and
collections of income in a currency other than United States dollars, all
transactions involving the Property shall be executed or settled solely in
accordance with Instructions (as
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that term is defined in Section 8), except that until the Custodian receives
Instructions to the contrary, the Custodian will:
(a) collect all interest and dividends and all other income and
payments, whether paid in cash or in kind, on the Property, as
the same become payable and credit the same to the Cash Account.
(b) present for payment all Securities held in the Account which are
called, redeemed or retired or otherwise become payable and all
coupons and other income items which call for payment upon
presentation to the extent that the Custodian is actually aware
of such opportunities and credit the cash received to the Cash
Account;
(c) (i) exchange Securities where the 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); and (ii) when notification of a
tender or exchange offer (other than ministerial exchanges
described in (i) above) is received for the Account, endeavor to
receive Instructions, provided that if such Instructions are not
received in time for the Custodian to take timely action, no
action shall be taken with respect thereto;
(d) whenever notification of a rights entitlement or a fractional
interest resulting from a rights issue, stock dividend or stock
split is received for the Account and such rights entitlement or
fractional interest bears an expiration date, if after
endeavoring to obtain Instructions such Instructions are not
received in time for the Custodian to take timely action, sell
in the discretion of the Custodian (which sale the Customer
hereby authorizes the Custodian to make) such rights entitlement
or fractional interest and credit the Cash Account with the net
proceeds of such sale:
(e) execute in the Customer's name for the Account, whenever the
Custodian deems it appropriate, such ownership and other
certificates as may be required to obtain the payment of income
from the Property; and
(f) appoint brokers and agents for any of the ministerial
transactions involving the Securities described in (a) - (e),
including, without limitation, affiliates of the Custodian or
any Subcustodian.
Notwithstanding the foregoing and any Instructions received in
connection therewith, with respect to Securities issued outside of the United
States, the Custodian shall not assume any responsibility with respect to coupon
payments, redemptions, exchanges, or similar matters affecting such Securities,
and its duties hereunder shall be limited to the safekeeping of such Securities
only. Collections of income in foreign currency are, to the extent possible, to
be converted into United States dollars as soon as practicable, and in effecting
such conversions the Custodian may use such methods or agencies as it may see
fit, including the facilities of its own foreign division at customary rates.
The Custodian shall deliver, subject to Section 7 below, any and all
Property in the Account in accordance with Instructions and, in connection
therewith, the Customer will accept delivery of Securities of the same class and
amount in place of those contained in the Account.
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3. Records, Ownership of Property and Statements. The ownership of the
Property, whether maintained directly by the Custodian or indirectly through a
Subcustodian or a Securities System (as that term is defined in Section 4) in
which the Custodian participates, shall be clearly recorded on the Custodian's
books as belonging to the Account or the Cash Account and not for the
Custodian's own interest. The Custodian shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other transactions for
the Account and the Cash Account. All accounts, books and records of the
Custodian relating thereto shall be open, upon reasonable notice from the
Customer to the Custodian, to inspection and audit at all reasonable times
during normal business hours by any person designated by the Customer.
Subject to the election of the Customer as hereinafter provided, the
Custodian will supply to the Customer from time to time, as mutually agreed
upon, a statement in respect to any Property in the Account or the Cash Account
maintained by the Custodian or by a Subcustodian. In the absence of the filing
in writing with the Custodian by the Customer of exceptions or objections to any
such statement within sixty (60) days of the mailing thereof, the Customer shall
be deemed to have approved such statement; and in such case or upon written
approval of the Customer of any such statement, such statement shall be presumed
to be correct for all purposes with respect to all information set forth
therein. In addition, the Customer understands that it has the option to elect
to participate in the Custodian's electronic on-line service and communication
system which can provide the Customer, on a daily basis, with the ability to
view on-line or to print on hard copy (the "Electronic On-Line System"): (i) all
transactions involving the delivery in and out of the Account on a free or
payment basis; (ii) payments of principal and interest or dividends; (iii)
pending transactions and fails; and (iv) schedules of Securities in the Account
plus the market values thereof. To the extent that the Electronic On-Line System
shall include market values of Securities in the Account, the Customer hereby
acknowledges that the Custodian now obtains and will in the future obtain
information on such values from outside sources which the Custodian deems to be
reliable, and confirms that the Custodian does not verify nor represent or
warrant either the accuracy or the completeness of any such information
furnished or transacted by or through the Electronic On-Line System, and the
Custodian shall be without liability in selecting and using such sources and
furnishing any information derived therefrom.
4. Subcustodians, Securities Systems and Foreign Subcustodians.
(a) The Customer authorizes and instructs the Custodian to maintain the
Property in the Account directly in one of its U.S. branches or indirectly
through custody accounts which have been established by the Custodian with the
following other securities intermediaries:(a) another U.S. bank or trust company
or branch thereof located in the U.S. (individually, a "Subcustodian"), or (b) a
U.S. securities depository or clearing agency or system in which the Custodian
or a Subcustodian participates (individually, a "Securities System"). The
Custodian shall select in its sole discretion the entity or entities in the
custody of which any of the Securities may be so maintained or with which any
Cash may be so deposited. The Custodian may, at any time in its discretion, upon
written notification to the Customer, terminate the employment of any
Subcustodian or Securities System.
(b) In the event that the Customer invests in a Security for which the
principal trading market is a country other than the United States or which is
to be acquired or presented for payment in a country other than the United
States, the Custodian will use reasonable effort to appoint a subcustodian in
the appropriate jurisdiction ("Foreign Subcustodian"). The Foreign Subcustodian
may be a banking institution, securities depository or securities clearing
system organized under the laws of a country other than the United States.
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5. Holding of Securities, Nominees, etc. Securities in the Account which
are maintained by the Custodian or any Subcustodian may be held directly by such
entity in the name of the Customer or in bearer form or maintained, in the
Custodian's or Subcustodian's own name, in the name of the Custodian's or
Subcustodian's nominee. Securities which are maintained through a Subcustodian
or are eligible for deposit in a Securities System as provided above may be
maintained with the Subcustodian or the Securities System in an account for the
Custodian's or Subcustodian's customers. The Custodian or Subcustodian, as the
case may be, may combine certificates representing Securities held in the
Account with certificates of the same issue held by it as fiduciary or as a
custodian. In the event that any Securities in the name of the Custodian or its
nominee or held by one of its Subcustodians and registered in the name of such
Subcustodian or its nominee are called for partial redemption by the issuer of
such Security, the Custodian may, subject to the rules or regulations pertaining
to allocation of any securities depository in which such Securities have been
deposited, allot, or cause to be allotted, the called portion to the respective
beneficial holders of such class of security in any manner the Custodian deems
to be fair and equitable. Securities maintained with a Securities System shall
be maintained subject to the rules of that Securities System governing the
rights and obligations among the Securities System and its participants.
6. Proxies, etc. If the Custodian shall receive any proxies, notices,
reports or other communications relative to any of the Securities in the
Account, the Custodian shall as soon as practicable transmit to the Customer, or
notify the Customer of the receipt of, such proxies, notices, reports or other
communications. Neither the Custodian nor its nominees or agents shall vote upon
or in respect of any of the Securities in the Account, execute any form of proxy
to vote thereon, or give any consent or take any action (except as provided in
Section 2) with respect thereto except upon the receipt of Instructions relative
thereto.
7. Settlement Procedures.
(a) The proceeds from the sale or exchange of Securities will be
credited and the cost of such Securities purchased or acquired will be debited
to the Cash Account in accordance with the schedule specified in the Custodian's
Policies and Standards Manual in effect from time to time. Upon the execution
and delivery of this Agreement, the Customer acknowledges receipt of the
Custodian's Policies and Standards Manual in effect on the date hereof.
Notwithstanding the preceding sentence, settlement and payment for Securities
received for the Account and delivery of Securities maintained for the Account
may be effected in accordance with the customary or established securities
trading or securities processing practices and procedures in the jurisdiction or
market in which the transaction occurs, including, without limitation,
delivering Securities to the purchaser thereof or to a dealer therefor (or an
agent for such purchaser or dealer) against a receipt with the expectation of
receiving later payment for such Securities from such purchaser or dealer. The
Custodian shall not be liable for any loss which results from effecting
transactions in accordance with the customary or established securities trading
or securities processing practices and procedures in the applicable jurisdiction
or market.
(b) The Custodian shall not be required to comply with any Instructions
to settle the purchase of any securities for the Account, unless there are
sufficient immediately available funds in the Cash Account, provided that, if,
after all expenses, debits and withdrawals ("Debits") applicable to the Cash
Account have been made and if after all Conditional Credits, as defined below,
applicable to the Cash Account have been made final entries as set forth in (d)
below, the amount of immediately available funds in such Cash Account is at
least equal to the aggregate purchase price of all securities for which the
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Custodian has received Instructions to settle on that date ("Settlement Date"),
the Custodian, upon settlement, shall credit the Securities to the Account by
making a final entry on its books and records.
(c) Notwithstanding the foregoing, if after all Debits applicable to the
Cash Account have been made, there remains outstanding any Conditional Credit
applicable to the Cash Account or the amount of immediately available funds in
such Cash Account are less than the aggregate purchase price of all securities
for which the Custodian has received Instructions to settle on the Settlement
Date, the Custodian, upon settlement, may provisionally credit the Securities to
the Account by making a conditional entry on its books and records ("Conditional
Credit"), pending receipt of sufficient immediately available funds in the Cash
Account.
(d) If, within a reasonable time after the posting of a Conditional
Credit and after all Debits applicable to the Cash Account have been made,
immediately available funds at least equal to the aggregate purchase price of
all securities subject to a Conditional Credit on a Settlement Date are
deposited into the Cash Account, the Custodian shall make the Conditional Credit
a final entry on its books and records. In such case, the Customer shall be
liable to the Custodian only for late charges at a rate mutually agreed upon in
writing by the Custodian and the Customer.
(e) If (i) within a reasonable time from the posting of a Conditional
Credit, immediately available funds at least equal to the resultant Debit on a
Settlement Date are not on deposit in the Cash Account, or (ii) any Proceeding
shall occur, the Custodian may sell such of the Securities subject to the
Conditional Credit as it selects in its sole discretion and shall apply the net
proceeds of such sale to cover such Debit, including related late charges, and
any remaining proceeds shall be credited to the Cash Account. If such proceeds
are insufficient to satisfy such debt in full, the Customer shall continue to be
liable to the Custodian for any shortfall. The Custodian shall make the
Conditional Credit a final entry on its books as to the Securities not required
to be sold to satisfy such Debit. Pending payment in full by the Customer of the
purchase price for Securities subject to a Conditional Credit, and the
Custodian's making a Conditional Credit a final entry on its books, and unless
consented to by the Custodian, the Customer shall have no right to give further
instructions in respect of Securities subject to a Conditional Credit. The
Custodian shall have the sole discretion to determine which Securities shall be
deemed to have been paid for by the Customer out of funds available in the
Account. Any such Conditional Credit may be reversed (and any corresponding
Debit shall be canceled) by the Custodian unless and until the Custodian makes a
final entry on its books crediting such Securities to the Account. The term
"Proceeding" shall mean any insolvency, bankruptcy, receivership, reorganization
or similar proceeding relating to the Customer, whether voluntary or
involuntary.
(f) The Customer agrees that it will not use the Cash Account to
facilitate the purchase of securities without sufficient funds in the Cash
Account (which funds shall not include the proceeds of the sale of the purchased
securities).
8. Instructions. The term "Instructions" means instructions from the
Customer in respect of any of the Custodian's duties hereunder which have been
received by the Custodian at its address set forth in Section 13 below (i) in
writing (including, without limitation, facsimile transmission) or by tested
telex signed or given by such one or more person or persons as the Customer
shall have from time to time authorized to give the particular class of
Instructions in question and whose name and (if applicable) signature and office
address have been filed with the Custodian; or (ii) which have been transmitted
electronically through the Electronic On-Line System; or (iii) a telephonic or
oral communication by one or more persons as the Customer shall have from time
to time authorized to give
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the particular class of Instructions in question and whose name has been filed
with the Custodian; or (iv) upon receipt of such other form of instructions as
the Customer may from time to time authorize in writing and which the Custodian
agrees to accept. Instructions in the form of oral communications shall be
confirmed by the Customer by tested telex or writing in the manner set forth in
clause (i) above, but the lack of such confirmation shall in no way affect any
action taken by the Custodian in reliance upon such oral instructions prior to
the Custodian's receipt of such confirmation.
The Custodian shall have the right to assume in the absence of notice to
the contrary from the Customer that any person whose name is on file with the
Custodian pursuant to this Section has been authorized by the Customer to give
the Instructions in question and that such authorization has not been revoked.
The Custodian may act upon and conclusively rely on, without any liability to
the Customer or any other person or entity for any losses resulting therefrom,
any Instructions reasonably believed by it to be furnished by the proper person
or persons as provided above.
9. Standard of Care. The Custodian shall be responsible for the
performance of only such duties as are set forth herein or contained in
Instructions given to the Custodian which are not contrary to the provisions of
this Agreement. The Custodian will use reasonable care with respect to the
safekeeping of Securities in the Account and in carrying out its obligations
under this Agreement. So long as and to the extent that it has exercised
reasonable care, the Custodian shall not be responsible for the title, validity
or genuineness of any Property or other property or evidence of title thereto
received by it or delivered by it pursuant to this Agreement and shall be held
harmless in acting upon, and may conclusively rely on, without liability for any
loss resulting therefrom, any notice, request, consent, certificate or other
instrument reasonably believed by it to be genuine and to be signed or furnished
by the proper party or parties, including, without limitation, Instructions, and
shall be indemnified by the Customer for any losses, damages, costs and expenses
(including, without limitation, the fees and expenses of counsel) incurred by
the Custodian and arising out of action taken or omitted with reasonable care by
the Custodian hereunder or under any Instructions. The Custodian shall be liable
to the Customer for any act or omission to act of any Subcustodian to the same
extent as if the Custodian committed such act itself. With respect to a
Securities System or a Foreign Subcustodian, the Custodian shall only be
responsible or liable for losses arising from employment of such Securities
System or Foreign Subcustodian caused by the Custodian's own failure to exercise
reasonable care. In the event of any loss to the Customer by reason of the
failure of the Custodian or its Subcustodian to utilize reasonable care, the
Custodian shall be liable to the Customer to the extent of the Customer's actual
damages at the time such loss was discovered without reference to any special
conditions or circumstances. In no event shall the Custodian be liable for any
consequential or special damages. The Custodian shall be entitled to rely, and
may act, on advice of counsel (who may be counsel for the Customer) on all
matters and shall be without liability for any action reasonably taken or
omitted pursuant to such advice.
In the event the Customer subscribes to the Electronic On-Line System,
the Customer shall be fully responsible for the security of the Customer's
connecting terminal, access thereto and the proper and authorized use thereof
and the initiation and application of continuing effective safeguards and the
Customer agrees to defend, indemnify the Custodian and hold the Custodian
harmless from and against any and all liabilities, losses, damages, costs,
including attorneys' fees and every other expense of every nature incurred by
the Custodian as a result of any improper or unauthorized use of such terminal
by the Customer or by others on the Customer's premises.
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All collections of funds or other property paid or distributed in
respect of Securities in the Account, including funds involved in third-party
foreign exchange transactions, shall be made at the risk of the Customer.
Subject to the exercise of reasonable care, the Custodian shall have no
liability for any loss occasioned by delay in the actual receipt of notice by
the Custodian or by its Subcustodian of any payment, redemption or other
transaction regarding Securities in the Account in respect of which the
Custodian has agreed to take action as provided in Section 2 hereof. The
Custodian shall not be liable for any loss resulting from, or caused by, acts of
governmental authorities (whether de jure or de facto), including, without
limitation, nationalization, expropriation, and the imposition of currency
restrictions; acts of war, terrorism, insurrection or revolution; strikes or
work stoppages; the inability of a local clearing and settlement system to
settle transactions for reasons beyond the control of the Custodian; hurricane,
cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity
or other acts of God.
The Custodian shall have no liability in respect of any loss, damage or
expense suffered by the Customer, insofar as such loss, damage or expense arises
from the performance of the Custodian's duties hereunder by reason of the
Custodian's reliance upon records that were maintained for the Customer by
entities other than the Custodian prior to the Custodian's employment under this
Agreement.
The provisions of this Section shall survive termination of this
Agreement.
10. Investment Limitations and Legal or Contractual Restrictions or
Regulations. The Custodian shall not be liable to the Customer and the Customer
agrees to indemnify the Custodian and its nominees, for any loss, damage or
expense suffered or incurred by the Custodian or its nominees arising out of any
violation of any investment restriction or other restriction or limitation
applicable to the Customer pursuant to any contract or any law or regulation.
The provisions of this Section shall survive termination of this Agreement.
11. Fees and Expenses. The Customer agrees to pay to the Custodian such
compensation for its services pursuant to this Agreement, including if elected
by the Customer the Electronic On-Line System, as may be mutually agreed upon in
writing from time to time and the Custodian's out-of-pocket or incidental
expenses in connection with the performance of this Agreement, including (but
without limitation) legal fees. The initial fee schedule is set forth in Exhibit
A attached hereto. Such fees will not be abated by, nor shall the Custodian be
required to account for, any profits or commissions received by the Custodian in
connection with its provision of custody services under this Agreement. The
Customer hereby agrees to hold the Custodian harmless from any liability or loss
resulting from any taxes or other governmental charges, and any expense related
thereto, which may be imposed, or assessed with respect to any Property in the
Account and the Cash Account and also agrees to hold the Custodian, its
Subcustodians, and their respective nominees harmless from any liability as a
record holder of Property in the Account and the Cash Account. The Custodian is
authorized to charge the Cash Account and any other deposit account of the
Customer with the Custodian for such items. The provisions of this Section shall
survive the termination of this Agreement.
12. Amendment, Modifications, etc. No provisions of this Agreement may
be amended, modified or waived except in writing signed by the parties hereto.
No waiver of any provision hereto shall be deemed a continuing waiver unless it
is so designated. No failure or delay on the part of either party in exercising
any power or right under this Agreement operates as a waiver, nor does any
single or partial exercise of any power or right preclude any other or further
exercise thereof or the exercise of any other power or right.
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13. Termination. This Agreement may be terminated by the Customer or the
Custodian by sixty (60) days' written notice to the other; provided that notice
by the Customer shall specify the names of the persons to whom the Custodian
shall deliver the Securities in the Account and to whom the Cash in the Cash
Account shall be paid. If notice of termination is given by the Custodian, the
Customer shall, within sixty (60) days following the giving of such notice,
deliver to the Custodian a written notice specifying the names of the persons to
whom the Custodian shall deliver the Securities in the Account and to whom the
Cash in the Cash Account shall be paid. In either case, the Custodian will
deliver such Securities and pay such Cash to the persons so specified, after
payment of any amounts which the Custodian determines to be owed to it under
Sections 2 and 11. In addition, the Custodian may in its discretion withhold
from such delivery such Cash and Securities as may be necessary to settle
transactions pending at the time of such delivery. If within sixty (60) days
following the giving of a notice of termination by the Custodian, the Custodian
does not receive from the Customer a written notice specifying the names of the
persons to whom the Custodian shall deliver the Securities in the Account and to
whom the Cash in the Cash Account shall be paid, the Custodian, at its election,
may deliver such Securities and pay such Cash to a bank or trust company doing
business in the State of New York to be held and disposed of pursuant to the
provisions of this Agreement, or may continue to hold such Securities and Cash
until a written notice as aforesaid is delivered to the Custodian, provided that
the Custodian's obligations shall be limited to safekeeping.
14. Notices. Except as otherwise provided in this Agreement, all
requests, demands or other communications between the parties or notices in
connection herewith (a) shall be in writing, hand delivered or sent by
registered mail, telex or facsimile addressed to such other address as shall
have been furnished by the receiving party pursuant to the provisions hereof and
(b) shall be deemed effective when received, or, in the case of a telex, when
sent to the proper number and acknowledged by a proper answerback.
15. Security for Payment. To secure payment of all fees and expenses
payable to Custodian hereunder, including but not limited to amounts payable
pursuant to the indemnification provisions, the Customer hereby grants to
Custodian a continuing security interest in and right of setoff against the
Account, the Cash Account and all Property held therein from time to time in the
full amount of such obligations. Should the Customer fail to pay promptly any
amounts owed hereunder, Custodian shall be entitled to use available Cash in the
Cash Account, and to dispose of Securities in the Account as is necessary. In
any such case and without limiting the foregoing, the Custodian shall be
entitled to take such other action(s) or exercise such other options, powers and
rights as the Custodian now or hereafter has as a secured creditor under the New
York UCC or any other applicable law.
16. Governing Law and Successors and Assigns. This Agreement shall be
governed by the law of the State of New York and shall not be assignable by
either party, but shall bind the successors in interest of the Customer and the
Custodian.
17. Publicity. Customer shall furnish to Custodian at its office
referred to in Section 14 above, prior to any distribution thereof, copies of
any material prepared for distribution to any persons who are not parties hereto
that refer in any way to Custodian. Customer shall not distribute or permit the
distribution of such materials if Custodian reasonably objects in writing within
ten (10) business days (or such other time as may be mutually agreed) after
receipt thereof. The provisions of this Section shall survive the termination of
this Agreement.
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18. Submission to Jurisdiction. To the extent, if any, to which the
Customer or any of its respective properties may be deemed to have or hereafter
to acquire immunity, on the ground of sovereignty or otherwise, from any
judicial process or proceeding to enforce this Agreement or to collect amounts
due hereunder (including, without limitation, attachment proceedings prior to
judgment or in aid of execution) in any jurisdiction, the Customer hereby waives
such immunity and agrees not to claim the same. Any suit, action or proceeding
arising out of this Agreement may be instituted in any State or Federal court
sitting in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America,
and the Customer irrevocably submits to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding and waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought in such a court
and any claim that such suit, action or proceeding was brought in an
inconvenient forum. The Customer further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by certified air mail, postage prepaid, to the
Customer at its address on the signature page here of or in any other manner
permitted by law, such service to become effective upon the earlier of (i) the
date fifteen (15) days after such mailing or (ii) any earlier date permitted by
applicable law. Both parties agree to waive all rights to a jury trial.
19. Confidentiality. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that is publicly
available when provided or thereafter becomes publicly available other than
through a breach of this Agreement, or that is required or requested to be
disclosed by any bank or other regulatory examiner of the Custodian, Customer,
or any Subcustodian, any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or regulation. The
provisions of this Section shall survive the termination of this Agreement.
20. Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other provision of this Agreement.
21. Entire Agreement. This Agreement together with any exhibits attached
hereto, contains the entire agreement between the parties relating to the
subject matter hereof and supersedes any oral statements and prior writings with
respect thereto.
22. Headings. The headings of the paragraphs hereof are included for
convenience of reference only and do not form a part of this Agreement.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties hereto.
24. Signature Authorization. The Customer Signatories appearing below
are duly authorized officers or agents of the Customer. The Customer will
deliver to the Custodian a duly executed Secretary's Certificate in the form of
Exhibit B hereto, or such other evidence of such authorization as the Custodian
may reasonably require, whether by way of a certified resolution or otherwise.
Pg 9
10
IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized signatories to execute this Agreement as of the date first written
above.
REDWOOD TRUST, INC.
By:
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Name:
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Title:
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By:
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Name:
-----------------------------------
Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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