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HomeMy WebLinkAbout3968 Vendor Subject Department Status Code Amount Begin Date End Date Review Date Insurance Comments Contract Number VINING SPARKS Securities Safekeeping Finance PRO File Class $ 11/30/1998 12/31/2005 02/15/2007 3968 LEG 12-1 GL $ AL $ E&O $ Insurance Total $ Insurance Review Date Vault 01/01/2007 VIiN'EN-G~SPARKS IBG, LIMITED PARTNERSHIP CUSTODIAN AGREEMENT AORFEMENT dated as of November 30 ,199__8, betweenVINliWG-SPARKSIBG, LIMITED PARTNERSHIP ("Custodian") and City of Bramerton ("Customer"). 1. Ernplovment of Custodian. Customer hereby employs Custodian as custodian of all assets of Customer which are delivered to and accepted by Custodian (the "Property") pursuant to the terms and conditions set forth hereir~ Without limitation, such Property shall include stocks and other equity interests of every, type, evidences of indebtedness, other ixmtrumems representing same or rights or obhgations to receive, purchase, deliver or sell same and other non-cash investment property of Customer that is acceptable for deposit ("Securities") and cash from whatever source and hi whatever currency ("Cash"). Custodian shy not be responsible for any prope~, of Customer held or received by Customer or others and not delivered to and accepted by Custodian or any of its Subcustodians (as that term is defined in Section 4 below) as hereinafter prov/ded. 2. Account. Custodian agrees to establish and maintain one or more Accounts on its books in the naxlle of Customer (collectively, the "Account") for an3' and all Property. consisting of Securities from time to time received and accepted by Custodian or any of its Subcustodians for the account of Customer. Any and all Property consisting of Cash from time to time received and accepted by Custodian or any of its Subcustodians for the account of Customer shall be credited to the Account on the books of Custodia.n. Custodian shall have the right, in its sole discretion, to refuse to accept any Property that is not in proper form for deposit for any reasor~ Customer acknowledges its responsibility as a principal for all of its obligations to 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 depos/t in the Accounts any Property received t~erefor by Custodian or its Subcustodian and to give, and authorize others to give, instructions relative thereto pursuant to the terms of this Agreement. Cu~stomer further agrees that Custodian shall not be subject to, nor shall its rights and obligations under this Agreement or with respect to the Accounts, be affected by, any agreement between Customer and any other person. Custodian shall hold, keep safe and protect as custodian for the Account, on behalf of Customer, ali Property in the Accounts. All transactions involving the Property. shall be executed or settled solely in accordance with Instructions (as that term is defined in Section 8), except that until Custodian receives Instructions to the contrary, Custodian will (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): (a) collect aH interest and dixSdends and all other income and payments, whether pa/d in cash or in Kind, on the Property., as the same become payable and credk the same to the Account; Co) present-for payment al/ Securities held in the Account which are called, redeemed or retired or otherwise become payable and all coupons and other income items wh/ch call for payraent upon presentation to the extent that Custodian is actually aware of such opportumtles and credit the cash received to the 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 docume~nts of entitlement to securlries, for the Securities themselves); and (ii) when notification of a tender or exchange offer (other than m/roster/al exchanges described in (i) above) is received for the 1 Account, endeavor to receive Instructions, provided that if such Instructions are not received in time for Custodian to take timely actlor~ no action shall be taken with respect thereto; (d) whenever notification of a righta 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 fi'actional interest bears an expiration date, if after endeavoring to obtain Instructions such Imnmmtiuns are not received in time for Custodian to take timely action, sell in the discretion of Custodian (which sale Customer hereby authorizes Custodian to make) such rights entitlement or fractional interest and credit the Account with the net proceeds of such sale; (e) execute in Customer's name for the Account, whenever Custodian deems it appropriate, such ownership and other certificates as may be required to obtain the payment of income from the Property, (f) appoint brokers and agents for any of the ministerial transactions involving the Securities described in (a) - (e), including, without limitation, affiliates of Custodian or any Subcnstodian; and (g) pledge Securities for the benefit of Customer, only upon Instructions of Customer, utilizing the pledge account services of The Bank of New York as Subcustodiam Unless Customer provides Custodian with a contrary Instruction (see Exhibit D hereto), Custodian shall have the authority to invest idle Cask in Custodian's possession for Customer in any of the money market funds used by Custodian for the investment of cash, including 12b-1 funds, and Custodian may receive adminlstratiun fees from a fund sponsor. Unless authority is withheld, any cash balance of $1 or more will automatically be invested, on a dally basis, in a money market fund selected by Custodian. SpecLfically, an order to purchase shares of or make a deposit into the money market fund will be placed (x) in the case cf available cash resulting from the proceeds of Securities sales, on the next business day after settlement date, and (.y) in the case of available Cash resulting from non-trade credits (i.e., receipt of dividend or interest payments, deposited in cash into the Account) on the business day after receipt by Custodian. All ~hares purchased or monies deposited pursuant to these procedures will beg/n earning dividends on the business day after the order is placed. A purchase order or deposit will not be entered until flee credit balances or cash in the form of fec~eral funds become available to Custodian. Dividends earned un money market fund shares will be reinvested daily in such shares. Notwithstanding the foregoing and any Instructions received in connection therewith, with respect to Securities issued outside of the Unites States, Custodian shall not assume any responsibility with respect to coupon payment, redemption, 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 Custodian may use such methods or agencies as it may see fit, inchiding the facilities of its own foreign division (if any), at customary rates. Custodian shall deliver, subject to Section 7 below, any and all Property in the Account in accordance with Instructions and, in connection therewith, Customer will accept delivery of Securities of the same class and amount in place of those contained in the Account. 3. Records. Ownershin of Prooer[v and Statements. The ownership of Property, whether held by Custodian or a Subcustodian or in a Securities System (as that term is defined in Section 4) in which Custodian participates, shall be clearly recorded on Custodian's books as belonging to the Accounts and not for Custodian's own interest. Custodian shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions for the Accounts. All accounts, books and records of Custodian relating thereto shall be open, upon reasonable notice from Customer to the Custodian, to inspection and audit at all reesonab[ff times during normal busIness hours by any person designated in writing by Customer. 2 Subject to the election of Customer as hereinafter provided, Custodian will supply to Customer from time to time, as mutually agreed upon, a statement in respect to any Property in the Accounts held by Custodian or by a Subcustodian. In the absence of the filing in writing with Custodian by Customer of exceptious or objections to any such statement, and in such case or upon written approval of Customer of any such statement, such statement shall be presumed to be correct for ali purposes with respect to all information set forth therein. 4. ~ub$¢stodians and Securities Svsterns. Customer authorizes and instructs Custodian to hold the Property in the Accounts in custody accounts wkich have been established by Custodian with (a) a 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 Custodian or a Subcustodian participates (individually, a "Securities System"). 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. Custodian may, at any time in its discretion, terminate the employment of any Subcustodian or Securities System. 5. Holding of Securities. Nominees. etc. Securities in the Account which are held by Custodian or any Subcustodian may be held by such entity in the ntune of Customer, in Custodian's or Subcustodian's own nme, in the name of Custodian's or Subcustodian's nominee, or in bearer form. Securities which are held by 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 Custodian's or Subcustodian's customers. 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 custodiar~- In the event that any Securities in the name of Custodian or its nornmee or held by one of its Subcustodians and registered in the name of such Subcustodian or its nominee are cai/ed for partial redemption by the issuer of such Security, 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 Custodian deems to be fair and equitable. 6. 'eP.r..9.z;~.,.~. If Custodian shall receive any proxies, notices, reports or other communications relative to any of the Secur/ties in the Account, Custodian shall as soon as practicable transmit to Customer, or notify Customer of the receipt of, s~tch proxies, notices, reports or other commumcations. Neither Custodian nor its nominees or agents shall vote upon or in respect of any of the Securities in the Account, execute any form of prow to vote thereon, or give any consent or take any action (excerpt as provided in Section 2) with respect thereto except upon the receipt of Instructions relative thereto. - 7. Settlement Procedures. (a) The proceeds from thc sale or exchange of Securities will be credited and the cost of such Securities purchased or acquired will be debited to the Account in accordance with applicable industry standards. 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 lira/ration, 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 Securities from such purchaser or dealer. Custodian shall not be liable for any loss which results from cffecting transactions in accordance with the customary or established securities trading or securities processing practices and procedures in the applicable jurisdiction or market. (b) Custodian shall not be required to comply with any InsWuctions to settle the purchase of any securities for the Account, unless there are sufficient nmmediately available funds in the Account, provided that if, after all expenses, debits and withdrawals ("Debits") applicable to the Account have been made and if after all Conditional Credits, as de£med below, applicable to the Account have been made final entries as set forth in (d) below, the amount of immediately available funds in such Account is at least equal to the aggregate purchase price of all securities for which Custodian has received histructions to settle on that date ("Settlement Date"), Custodian, upon settlement, shall credit the Securities to the Account by making a final entry, on its books and records. 3 (c) Notwithstanding the foregoing, i~ aider all Debits applicable to the Account have been made, there remains outstanding any Conditional Credit applicable to the Account or the amount ofimmedistely available funds in such Account are less than the aggregate purchase price of all securities for which Custodian has received Instructions to settle on the Settlement Date, Custodian, upon set'dement, may provisionally credit the Securities to the Account by making a conditional entry on its books and records ("Conditional Credit"), pending receipt of su~ciant immediately available funds in the Account. (d) l/, with_in a reasonable time after the posting of a Conditional Credit and after all Debits applicable to the 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 Account, Custodian shall make the Conditional Credit a final entry on its books and records. In such case, Customer shall be liable to Custodian only for late charges at a rate mutually agreed upon in writing by Custodian and Customer. (e) If (i) within a reasonable time fi.om the posting of a Conditional Credit, immediately available funds at least equal to the resultant Debii on a Settlement Date are not on deposit in the Account, or (ii) any Proceeding shall occur, 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 Account. [f such proceeds are insufficient to satisfy such debt in full, Customer shall continue to be liable to Custodian for any shortfall. Custodian shall make the Conditional Credit a fi_ual entry on its books as to the Securities not required to be sold to satisfy such Debit. Pending payment in full by Customer of the purchase price for Securities subject to a Conditional Credit, and Custodian's making a Conditional Credit a final entry on its books, Customer shall have no security entitlement and, unless consented to by Custodian, no right to give further Instructions in respect of Securities subject to a Conditional Credit. Custodian shall have the sole discreti°n to determine which Securities shall be deemed to have been paid for by Customer out of funds available in the Account. Any listing on a report to Customer of Securities which are subject to a Conditional Credit shall be deemed for informational purposes only and such Securities shall not be deemed finally credited to the Account; accordingly, such Conditional Credit may be reversed (any corresponding Debit shall be canceled) by Custodian unless and until Custodian makes a final entry on its books crediting such Securities to the Account. "Proceeding" shall mean any insolvency, bankruptcy, receivership, reorg~n;~ation or similar proceeding relating to Customer, whether voluntary or involuntary. (f) Customer agrees that it will not use the Account to facilitate the purchase of securities without sufficient funds in the Account (which funds shall not include the proceeds of the sale of the purchased securities). (g) If Custodian in its sole discretion advances funds hereunder or there shall arise for whatever reason an overdraft in an Account (including, without limitation, overdrafts incurred with the settlement of securities transaction, funds transfers or foreign exchange transactions) or if Customer is for any other reason indebted to Custodian, Customer agrees to repay Custodian on demand the amount of the advance, overdrai't or indebtedness plus accrued interest at a rate ordinarily charged by Custodian to iB institutional custody customers. 8. hastmctions. "Instructions" means instructions from Customer in respect of any of Custodian's duties hereunder which have been received by Custodian at its address set forda in Section 13 below fi.om an Authorized Person authorized by Customer to give the particular class of Instructions in question or fi.om a person reasonably believed by Custodian to be such an Authorized Person (i) in writing (including, without limitation, facsimile transm/ssion, telex, or any other method whereby Custodian is able to verify with a reasonable degree of certainty, the identity of the sender of such communication or the sender is required to provide a password or other identification code); (ii) by an oral communication (whether in person, by telephone or otherwise); or (iii) upon receipt of such other form of instructions as Customer may fi.om t/me to time authorize in writing and which Custodian agrees to accept. Instructions in the form of oral commumcations shall be comf'Lrmed by 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 Custodian in reliance upon such oral instructions prior to Custodian's receipt of such confirmation, or cause Custodian to be liable for relying upon such oral communications. 4 An "Authorized Person" means such one or more person or persons as Customer shall have fi.om time to time authorized to give the particular class of instructions in question end whose name, signa~u'e and office address have been filed with Custodian in a Certificate of Authorized Persons in the form attached hereto as Exhibit B (or such other form of authorization as Custodian may reasonabby require) which contains a specimen signature of such person and designates the class of iustructions which such person is authorized to give to Custodim Custodian sMll have the right to assume, in the absence of written notice to the contrary from Customer, that any Authorized Person whose name is on file with Custodian pursuant to this Section has been authorized by Customer to give the Instructions in question and that such authorization has not been revoked. Customer agrees to furnish Custodian a new Certifzoate of Authorized Person in the event of any change in the then present Authorized Persons. Until a new Certificate is received, Custodian may act upon and conclusively rely on, without any liability to Customer or any other person or entity for any losses resulting therefrom, any Instrucrions reasonably believed by it to be furnished by a present Authorized Person. 9. ~3.~. Cnstodian shall be responsible for the performance of only such duties as are set forth herein or contained Lq Instructions given to Custodian which are not contrary to the provisions of this Agreement 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, Custodian shall not be responsible for the rifle, 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, inaWuctions, and shall be indemnified by Customer for any losses, damages, costs and expenses (including, without Limitation, the fees and expenses of counsel) incurred by Custodian and arising out of action taken or omitted with reasonable care by Custodian hereunder or under any Instructions. Custodian shall be liable to Customer for any act or omission to act of any Subcnstodian to the same extent as if Custodian committed such act itsalt~ With respect to a Securities System or a Foreign Subcustodian, Custodian shall only be responsible or Liable for losses arising fi.om employment of such Secunlaes System or Foreign Subcustodian caused by Custodian's own failure to exercise reasonable care. In the event of any loss to Customer by reason of the failure of Custodian or its Subcnstodian to utilize reasonable care, Custodian shall be liable to Customer to the extent of Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstences, in no event shall Custodian be liable for any consequential or special damages, lost profits or loss of business. Custodian shall be enritied to rely, and may act, on advice of counsel (who may be counsel for Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to-such advice. Without limiting the generality of the foregoing, Custodian shall not be obligated to (a) inquire into and shall not be liable for any losses incurred by Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely Wansferable or deliverable without incumbrance in any relevant market, O) take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment, (c) inquire into, make recommendations, supervise, or determLue the suitability of any transaction affecting any Account, or (d) perform any duties or responsibilities not specifically set forth in this Agreement. Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or role (including regulations or rules of self-regulatory organizations) now or hereafter m effect. In the event Customer utilizes any means of electronic commurficafion to Custodian, Customer shall be fully responsible for the security of Customer s transmass~un devm , access thereto and the proper end author/zed use thereof and the initiation and application of continuing effective safeguards and Customer agrees to defend, indemnify Custodian and hold Custodian harmless fi.om and against any and all liabilities, losses, damages, costs, including attorneys' fees and every other expense of every nature incurred by Custodian as a result of any improper or unauthorized use of such device by Customer or by others on Customer's premises. 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 Customer. Subject to the exercise of reasonable care, Custodian shall have no liability for any loss occasioned by delay in the actual receipt of 5 · ' ' Securities in the notice by Custodian or by its Subcustodian of any payment, rcdetnpt~on or other transacUon regarding Account in respect of which Custodian has agreed to take action as provided in Section 2 hereof. Custodian shall not bc 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 resections; acts of war, terrorism, m . - a ,~. .... '-el of Custodian; humcane, cyclone, eart~quaxe, vo~camc e~F , to settle transant~ons for reasons oeyonu u~ nuclear fusion, fission or radioactivity or other acts of God. Custodian shall have no hability in respect of any loss, damage or expense suffered by Customer, insofar as such loss, damage or expense arises from the performance of Custodian's duties hereunder by reason of Custodian's reliance upon records that were mamtsined for Customer by entities other than Custodian prior to Custodian's employment under this Agreement. Except ms otherwise provided herein, Customer agrees to indemnify and hold harmless Custodian from and damages, liabilities or clahr~s (including reasonable attorneys' and accountants' fe~s) against any and all costs, expenses .... · , . r ("Losses") incurred by or asserted agaiust Customer or Custodian ansmg out of Custodian s action o mctiun under this Agreement. This indemnity shall be continuing obligation of Customer, its succesanrs and assigns. The provisions of this Section shall survive t~nnmation ofth~ Agr~ment. and F~xoenscs Customer agrees to pay to Custodian such compensat~un f.o.r 1~ services p~ant 10. ~es ~, ~-72.., a~eed unon in writing from tirae to time and Custodians out-o! pocket or to this Agreement as may ne muuma,3 m incidental expenses in connection with the performance of this Agreement, including (but without limitation) legal and accounting fees. The i~J. tial fee schedule i~ s~t forth in ExhibR A attached hereto. Such fees will not be abated by, nor shall Custodian be required to account for, any profits or commissions received by Custodian in connection with its provision of custody services under th~ Agreement Customer hereby agrees to hold Custodian harmle~ from any liability or loss resulting from any tm(es or other govcrmmentai charges, and any expense related thereto, which may be imposed, or assessed with respect to any Property in the Accounts and also agrees to hold Custodian, its $ubcustodian~, and ~.eir respective nommees harmless from any liability a~ a record holder of Property in the Accounts. Custodian is authorized to charge the Account and any other account of Customer with Custodian for such items. The provisious of this Section shall survive the termination of ffJs A~reement. that either Customer owns the Securl'a.¢s 1~ the ,~ccoBnt free anu encumbrances (except those granted herein), or if thc Securities are owned beneficisily by others, Customer ha~ the ~ight to pledge such Securities to the extent necessm-f to secure Customer's and the beneficial owner's obligations hereunder, free of any right of redemption or prior claim by the beneficial owner. Custodian's security interest pursuant to this Section shall be a frrst lien and security interest subject to no setoffs, ¢ounterclaim~ or other liens prior to or on a parity with it in favor of any other party (other than speciIic liens granted preferred status by statute), and Customer shall take any and ali additional steps which Custodian requires to assure itseLf of such priority and status, including notifying third pa~es or obtaining their consent to Custodian's security interest. ~/'ith respect to Accounts established in the name of third parties, Customer represents and warrants to Custodian that Customer has been duly authorized to enter into and perform all transactions contemplated hereby and to take actions and give Instructions with legal and binding effect upon such third parties and their respective Accounts. in order to secure repayment of Customers and each third partes obligatious to Custodian hereunder, Customer hereby pledges and grants to 'Custodian a continuing lien and security interest and right of set-off against, all of Customer's right, title and interest in and to ia) ali Accounts in Customer's name and the Proper~y now or hercailer held in such Accounm (including proceeds thereof), (b) each Account in respect of which or for whose benefit the advance, overdraf~ or indebtedness relates and the Property now or hereatter held in such Accounm (including proceeds thereof) and (c) any other property at any time held by it for the account of Customer. In this regard, Custodian shall be~ntitled 6 to all the rights and remedies of a pledgee under common law and a secured party under the Tennessee Uniform Commercial Code and any laws or regulations then in effect. 12. Amendment. Modification. Etc. No provisions of this Agreement may be mended, modified or waved except in writing signed by the par~ies hereto. No waiver of this Agreement may be emended, 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 par[y in exercising any power or fight under this Agreement operates a~ 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. 13. ~ This Agreement may be termmated by Customer or Custodian by ninety (90) days' notice to the other, i~rovided that the notice by Customer shall specify the names of the persons to whom Custodian shall deliver the Securities in the Account and to whom the Cash in the Account shall be pad. If notice of terminatinn is given by the Custodian, Customer shall, within ninety (90) days following the giving of such notice, deliver to Custodian a written notice specifying the names of the persons to whom Custodian shall deliver the Securities in the Account and to whom the Cash in the Account shall be paid. In either case, Custodian will deliver such Securities and pay such Cash to the ' ' ' be owed to it under Sections 2 and persons so specified, after payment of any mounts which Custodian determmes to 10. In addition, 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 ninety (90) days following the giving of a notice of terminations by Custodian, Custodian does not receive from Customer a written notice specifying the names of the persons to whom Custodian slmll deliver the Securities in the Account and to whom the Cash in the Account shall be pad, 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 provision of this Agreement, or may continue to hold such Securities and Cash until a written notice as aforesaid is delivered to Custodian, provided that Custodian's obligations shall be limited to safekeeping. Notwithstanding the foregoing, if the reason for termination of · ' required to pay this Agreement by Custodian is the failure of Customer to pay the fees and expenses which Customer m hereunder, the aforesaid rdmety (90) day periods may, in Custodian's discretions, be shortened to thirty (30) days, with notice thereof to Customer. 14. blotices. Except as othervfise provided in this Agreement, all requests, demands or other communications belwveen the parties or notices in connection b. erewith (a) shall be in writing, hand delivered or sent by registered mail, telex or facsimile addressed to the respective addresses for Custodian and Customer set forth on the signature page of this Agreement, or at 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 answer back 15. ~rOvernin~ Law: Successors and Assimas. This Agreement shall be governed by the law of the State of Tennessee and shall not be assignable by either party, but shall bind the successors in interest of Customer and Custodian. 16. publicity. Customer shall furnish to Custodian at its address 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 or this Agreement. Customer shall not distribute or permit the distribution of such materials ff Custodian reasonably objects in writing within ten (I 0) business days (or such otb_er time as_may be mutually agreed) after receipt thereof. The provisions of this Section shall survive the termination of this Agreement I7. Arbitration: Submission to Jurisdiction. Customer and Custodian agree that all controversies which may arise between the parties concerning any transaction or construction, performance, or breach of this or any other agreement between them pertaining to securities and other property, whether entered into pr/or, on or subsequent to the date hereof, shall be determined by arbitral[ion. Any arbitration under this agreement shall be conducted pursuant to the Federal Arbitration Act and the laws of the State of Tennessee, before the American Arbitration Association, or the Natioaai Association of Securities Dealers, Inc., or the Municipal Securities Rulemaking Board and in accordance with 7 the applicable rules of the selected organization. Customer may elect in the fzrst instance whether arbitration shall be by the American Arbitration Association, or by a Sell-Regulatory Organization of which Custodian is a member. However, ff Customer fain to make such election by registered letter or telegram addressed to Custodian at Custodian's main address, before the expiration of ten (10) calendar days al~er the sending by Custodian of a written request (to Customer's then current address per Custodian records) that Customer make such election, then Custodian may make such election. The award of arbitrators, or of the majority of them, shall be final, and judgment upon the award rendered may be entered and enforced in any court, state or federal, having jurisdiction. No person shall bring a putative or certified class action to arbitration, nor seek to enfome any pre-dispute arbitration agreement against any person who has initiated in court a putative class action, or who is a member of a putative olass who has not opted out of the class with respect to any clroms encompassed by the putative class action until: (i) the olass certification is denied; or (ii) the class ks decertff~ed, or (iii) Customer is excluded from the class by the court. Such forbearance to enfome an agreement to arbitrate shall not constitute a waiver of any rights under th/s Agreement except to the extent stated herein. No action, regardless of form, arising out of a transaction or transactions conducted in the Account, may be brought by a customer more than one (1) year after the date that the transaction or transactions occurred in the Account. Arbitration is final and binding on the parties. The part, es are waiving herein their rights to seek remedies in court, including the right to jury trial. Pre.arbitration discovery is generally more limited than and different from court proceedings. The arbitrators' award is not required to include factual findings or legal reasoning and any party s ngh to appeal or to seek modification of the ruling by the arbitrators is strictly limited. The panel of arbitrators will typically include arbitrators who were or are affiliated with the securities industry. In the event that a court of competent jurisdiction determines in an unappealable decision that Customer cannot be required to submit di~.outes under this Agreement to binding arbitration, or if Custodian has resort to a court to enforce the arbitration award, then the terms of this paragraph shall apply. To the extent, if any, to which 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, attactmaent proceedings prior to judgment or in aid of execution) in any jurisdiction, 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 MemphLs, State of Tennessee, United States of America, and Customer irrevocably submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding and waives, to the fuI1est 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. 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 Customer at its address on the signature page hereof or in any other manner permitted by law, such service to become effective upon the earlier of (i) the date fit~een (15) days after such mailing or (ii) any earlier date pein'fitted by applicable law. Both parties agree to waive all rights to ajury Ix/al. 18. ~. 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. Ail confidential information provided by a party hereto sitall 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 puN/ely available when provided or thereafter becomes publicly available other than through a breach of thJ. s Agreement, or that is required or requested to be disclosed by any brokerage, bank or other regulatory examiner of 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 terrrdnatiun of this Agreement. 19. ~everabilitv. If any provision of this Agreement is determined to be invalid or unentbrceable, ~uch determination shall not affect the validity or enforceability of any other provision of this Agreement. 8 0 Entire A~reement This Agreement together with any exhibits attached hereto a~d the Custot~er 2 . ' -' ~ ' "- --';-e a,-'eement between the parties relating to the subject Agreement between Customer and Customan, con, ams m.e ~L~. r~ . La the event of any conflict matter hereof and supersedes any oral statements and prior writings with respect thereto. between this agreement and the Customer Agreement, the customer Agreement shall govern. 21. ~eadines. The headings of the paragraphs hereof are included for convenience of reference only and do not form a part of this Agreement. .......... be executed in any number of cotmtcsparts, each of w.hich,sh~, 22. ~otmtemerB. tins ~grccm~-~, ,,,~: ~ . ........ countemarts have been szgnea ama be deemed an origfinal This Agreement shall become erlecttve wizen on .......... ~ delivered by each of the parties hereto. ............ ~i~natories ~nnearktg below are duly authorized officers or agents 23. ~ .... ,,~a geeretarv's Certificate m the form of Exhibit C hereto, of Customer. Customer will deliver to Custooaan a aurY execute ..... ~ or such other evidence of such authorization as Custodian may reasonably require, whether by way of a certified resolution or otherwise. IN WITNESS WHEREOF, eack of the parties has caused its duly authorized signatories to execute this Agreement as of the date f~rst written above. Customer's address: City of Bremerton ("Customer" City of Bremerton By: ~'~c~e: Lynn S. Horton Bremerton, WA 98337 Title: [Vlayoz' At~: Rich Hanna, City Treasurer Date: Custodian's Address: VINING-SPARKS IBG, LIMITED PARTNERSHIP Attn.: K[mberly Hooker ("Custodian") 6077 Primacy parkway Memphis, TN 38119 Name: Ronald D. Sting / Title: Safekeeping Manager Date: 9 (US Custody) Tiffs Exh/bit A shall be amended upon delivery by Custodian of a new Exhibit A to Customer and acceptance by Customer and slrtall be effective as of the date of acceptance by Customer or a date agreed upon between Custodian and Customer. Account Maintenance $ 3 Per Position, Per Month Transaction Fee (Security Deposit/Withdrawal) 10 Inside Trade 30 Physicals Transaction Fee (Security Deposit/Withdrawal) 30 Outside Trade 30 Physicals Pledge/Release of Security 12 Statement of Assets 4 30 Registration Fee 15 Wire Charge - 5 Check Charge Monthly Minimum Fee 25 All out-of-pocket expenses will be charged directly to the Account at the time th. ese expenses are incurred. Th. ese costs include, but dali not be limited to, all siffppmg costs, telegraphic lransfer fees, re-reg/ztration\trausfer fees, postage, insurance, expenses imposed by other agents, etc. 10 (~ERTI]~CAT~ OF AUTPIORIZEI~ PERSONS (Customer - Oral ~nd Written ~s~c~ons) ~e ~dersi~ed h~eby ce~xes ~at h~e is ~e d~y elected md ac~g ~yor of ~i~y of Br~rton ("Customer"), ~d ~ c~ ~at ~e follo~g o~c~ or ~ploy~s of C~om~ have been d~y au~o~ed ~ co~o~i~ ~ C~tomer's ~cles of ~co~ora~on md By-Laws to deliv~ oral ~d ~ ~cfiom to ~ SP~ ~G, ~'I~D PAR~ ("C~to~') p~t to ~e C~ody Age~t be~een Cus~m~ ~d C~ted ~vm~r 30, 1998 ,~a~efoe~ote~to~e n~e of each p~on n~ed below refle~ ~y re~on on ~e ab~V of each of ~ m deHv~ ~y el~s of ~o~ ~o C~to~ ~ ~a~ ~e si~es appe~g opposite ~ek ~es ~e ~e ~d eo~eet: Richard ~a ~eas~er / Restrictions on authofi .ty of named individuals to dehver Instructions: 1 2 3 $ This certificate supersedes any certificate of author/zed individuals you may currently have on file. NamcaadTitie: Lynn 8. Horton, Mayor Date: 11 SECRETARY'S CERTIFICATE I, Kathl een MeCluskev , hereby certify that I am the Secretary of [Name of Secretary] City of Bremerton ,a Manieioal Corooration organized under the laws of S[tate of Wash'Cust°mefsName] [TypeofEntity] [Jurisdiction] ("Customer"), and as such I am duly authorized to, and do hereby, certify that: I. Organization_ Power and Authority. Customer is duly organized and e~sting under the laws of the jurisdiction of its organizat~on~ with full power to enter into this Agreement and to perform its obhgat~ous hereunder 2. ]~,~9.lgfi.9~. Resolutions have been duly adopted on behalf of Customer, which resolutions (i) have not in any way been revoked or rescinded, (ii) have been in full force and effect since their adoption, to and including the date hereof, and are now in full force and effect, and (iii) are the only corporate proceedings of Customer now in force relating to or affecting the matters referred to therein, incinding, without 1/mltafion, confm~Jng that Customer is duly authorized to enter into a certain custody agreement with VI1NI1NG-SPARKS IBG, LEM_f[ED PARTNERSHIP ' ' ' 3 of this Certificate, are (the "Agreement'), and that certain designated officers, including those tdentified m paragrapk authorized to execute said Agreement on behalf of Customer, in conformity with the requirements of Customer's orgamZationai documents, Bylaws, and other pertinent documents to which Customer may be bound. 3. [ncumbenc'~. The following named individuals are duly elected (or appointed), qua, lifted, and acting officers of Customer holding those offices set fort5 opposite their respective names as of the date hereof, each having full authority, acting individual¢, to bind Customer, as a legal matter, with respect to all matters pertaining to the Agreement, mad to execute and deliver said Agreement on behalf of Customer, and the signatures set forth opposite the respective names and titles of said officers are their true, authentic signatures: ~ame Title ~ignamre Lynn S. Horton Mayor Richard E. Hanna Treasurer Catherine Johnson Asst. Treasurer ~_/JT~/f/,~f'J ,'~ / EXECUTED tl~s~d, day of ~/~ ~ ~-~' ~'( Name: Kathleen McCluskey Title: Seeret~u'y City Clerk L (Ynery, 1 Henry [Name ofthe~onfirming Officer], Office Asst. S~Title] of Customer, hereby c ' that on thi~¥/-d day of ~,~-'~''~/~ ~ ,19~,q, Kathleen MeCluske..y . [Name ~f se~ecretary] is the duly elected' S~cretary of Customer and that the signature above is his genuine s~gnature. Name: Cheryl Henry. Title: Office Assistant Sr. 12 CUSTOMER INSTRUCTIONS AS TO CASH Cus~odia~ is hereby author]zed and directed to ~'eat all cash received by Custodian on behalf of Customer follows: [PLEASE INDICATE BY CI-I~CK MARK THE ALTERNATIVE SELECTED BY CUSTOMER] l. Deposit in money market fund designated by Customer. Attacked to th~s Ex.bit D is a ~ and a brief descrip~on of money market funds used by Custodian for the investment of cask If Customer selects this alternative, Customer must select fxom among the lksted funds the particular fund into which Customer wishes its cash to be deposited. Prospectuses of all funds listed have been supplied to customer simultaneous with delivery of this Agreement, and Customer acknowledges same by execution of this Agreement. [Please write here the name of the fund selected by the Customer.] 2. X ]Remit to Customer bv wire transfer. [Please write here wire instructions for remittance of cash to Customer by wire transfer.] (Name of bank, ABA number, address of bank. account number, name of account holder.) Seafirst Bank, #125000024, Seattle, WA, #61064303. Cit_v of l~-~rtnn 3. Remit to Customer by check. [please write here instructions for remittance of cash to Customer by check.] ~P'ayec name and address.) 13 DESCRWTION OF MONEY MARKET FUNDS pRIM_A.RY FUND: Invests In obligations of the U. S. Government and its agencies and prime bank obligations whose issuers axe rated ~ AA, or the eqinwlent, or Instruments secured or collateralized by such obligations. The fuud docs not invest in commercial paper of loan participation. U. S. GOVERNMltNT FIJN'O: Invests exclusively in obligations backed by the full faith and credit of the U, S. 0ovemmcnt, or instruments secured or collateralized by such obligations. U. S. TREASURY FUND: Invests exclusively In obligations of the U. S. Treasury, such as Treasury bills, and earns Income that is exempt from state and local taxes in most states. INTERSTATE TAX-EXEMPT FUND: Invests in mumcipal obligations whose issuers axe rated A.A~, AA, or the equivalent and earns income that may be exempt from Federal Income taxes. PKEVLtRY INS'rtl uTIONAL FUND: Invests In obligations backed by the full faith and credit of the United States Government and its agencies or instrumentalities; c~osit type obligations, acceptances and letters of credit of FDIC Lusured institutions and foreign banks with assets in excess of $25 billion; short term corporate obligations rated A-I orthe equivalent thereof; other sin~iinr high quality short term instruments; and instruments fully collateralized by the foregoing instruments. (MINI3iUM INITIAL INVESTI~EENT $1 MILLION DOLLARS) U. S. GOVERN1WENT INSTITUTIONAL FI[ND: Invests in obligations backed bythe full faith and credit of the United States Government or obligations collateralized thereby. (MINIMUM INITIAL INVES~ $1 MILLION DOI,LARS) SHARES OF ~ FUNDS ARE NEITI-[ER GUARANTEED NOR I1NsUKED BY TH~ U. S. GOVERNMENT. SHARES OF TH~ FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED OR ENDORSED BY ANY BANK, AND TI-I~ SHARES ARE NOT FEDERAI,LY INSURED BY TI-IE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD OF ANY OTHJgR GOVERNMENT AGENCY. TH]g ABOVE FUNDS PAY TI-IE CUSTODIAN AN ADMINISTRATIVE SERVICES FEE UNDER RULE 12 b-1 OF TI--IE 1940 IiNVESTNiENT COMPANY ACT (SEE PROSPECTUS PROVIDED). 14 VINING-SPARKS, IBG,'LP. -" SAFEKEEPING FEE SCHEDULE Account Maintenance $ 3.00 Per Position, Per Month Transaction Fee (Security Deposit/Withdrawal) Inside Trade 10.00 Physicals 30.00 Transaction Fee (Security Deposit/Withdrawal) Outside Trade 30.00 Physicals 30.00 PiedgefRelease of Security 12.00 Statement of Assets 4.00 Registration Fee 30.00 Wire Charge 15.00 Check Charge 5.00 Monthly Minimum Fee 25.00 All out-of-pocket expenses will be charged directly to the Account at the time these expenses are incurred. These costs include, but shall not be limited to, all shipping costs, telegraphic transfer fees, re-registration transfer fees, postage, insurance, expenses imposed by other agents, etc.