EXHIBIT (j)
AMENDED AND RESTATED CUSTODIAN AGREEMENT
This AMENDED AND RESTATED CUSTODIAN AGREEMENT dated as of August 4,
1999 by and between The Bank of New York, a New York banking corporation
(the "Custodian"), and DECS Trust V (such trust and the trustees thereof
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acting in their capacity as such being referred to herein as the "Trust"),
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a statutory business trust organized under the Business Trust Act of the State
of Delaware pursuant to a Declaration of Trust dated as of April 22, 1999 (as it
may be amended and restated from time to time, the "Trust Agreement").
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WITNESSETH
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold certain U.S. treasury
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securities (the "Treasury Securities"), to enter into and hold a forward
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purchase contract with one or more existing shareholders of Crown Castle
International Corp. (individually, a "Contract" and collectively, the
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"Contracts"), to hold security for the performance of such shareholder of their
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obligations under the Contracts pursuant to related collateral agreement (the
"Collateral Agreement") and to issue DECS in accordance with the terms and
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conditions of the Trust Agreement;
WHEREAS, the Trustee and the Custodian previously entered into a
Custodian Agreement dated as of April 23, 1999 (the "Original Custodian
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Agreement") whereby the Trustee engaged the services of the Custodian to perform
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certain custodial duties for the Trust and the Custodian agreed to assume such
duties on the terms and conditions set forth in the Original Custodian
Agreement;
WHEREAS, the Trustee and the Custodian desire to amend and restate the
Original Custodian Agreement as provided herein. Upon the execution and
delivery of copies hereof, the Original Custodian Agreement will be
automatically amended and restated as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
have the respective meanings specified in the Trust Agreement.
2. Appointment of Custodian; Transfer of Assets. The Trust hereby
constitutes and appoints the Custodian, and the Custodian accepts such
appointment, as agent of the Trust and as custodian of all of the property,
including but not limited to, the Contracts, the Treasury Securities, the
Temporary Investments, any cash and any other property at any time owned or held
by the Trust (other than Pledged Items (as defined in the Collateral Agreements)
held by the Collateral Agent thereunder) (collectively, the "Assets"). The
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Trust hereby deposits the Assets owned by the Trust on the date hereof with the
Custodian and the Custodian hereby accepts such Assets into its custody, and the
Trust shall deliver to the Custodian all additional Assets, including all
monies, securities and other property, received by the Trust at any time
during the period of this Agreement, subject to the following terms and
conditions. The Custodian hereby agrees that it shall hold the Assets in a
segregated custody account, separate and distinct from all other accounts, in
accordance with Section 17(f) of, and in such manner as shall constitute the
segregation and holding in trust within the meaning of, the Investment Company
Act and the rules and regulations thereunder. The Trust authorizes the
Custodian, for any Assets held hereunder, to use the services of any United
States securities depository permitted to perform such services for registered
investment companies and their custodians under Rule 17f-4 under the Investment
Company Act and which have been approved by the Trust, including but not limited
to, The Depository Trust Company and the Federal Reserve Book Entry System. The
Custodian shall be under no duty or obligation to inspect, review or examine any
Assets to determine that they are genuine, enforceable, or appropriate for the
represented purpose or that they are other than what they purport to be on their
face.
3. Asset Disposition; Examinations. The Custodian shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose of the
Assets, except pursuant to a written direction in accordance with paragraph 4
below and then only for the account of the Trust. The Assets shall be subject
to no lien or charge of any kind in favor of the Custodian for itself or for any
other Person claiming through the Custodian. The Custodian shall permit actual
examination of the Assets by the Trust's independent public accountant at the
end of each annual and semi-annual fiscal period of the Trust and at least one
other time during the fiscal year of the Trust chosen by such independent public
accountant and shall permit the inspection of the Assets by the Commission
through its employees or agents during the normal business hours of the
Custodian upon reasonable request.
4. Authorized Actions. The Custodian shall take such actions with
respect to the Assets as directed in writing by any Trustee or by any officer of
the Administrator as may be received by the Custodian from time to time.
5. Custodian's Actions Taken In Good Faith. In connection with the
performance of its duties under this Agreement, the Custodian shall have no
duties or obligations other than those specifically set forth herein or in the
Trust Agreement or as may subsequently be agreed in writing by the parties
hereto and shall be under no liability to the Trust or any Holder for any action
taken in good faith in reliance on any paper, order, certification, list,
demand, request, consent, affidavit, notice, opinion, direction, endorsement,
assignment, resolution, draft or other document, prima facie properly executed,
or for the disposition of the Assets pursuant to the Trust Agreement or in
respect of any action taken or suffered under the Trust Agreement in good faith,
in accordance with an opinion of counsel or at the direction of the Trustees
pursuant hereto; provided that this provision shall not protect the Custodian
against any liability to which it would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
hereunder. Notwithstanding any other provision of this Agreement, the Custodian
shall under no circumstances be liable for any punitive, exemplary, indirect or
consequential damages.
6. Trust Agreement Validity. The Custodian shall not be responsible
for the validity or sufficiency of the Trust Agreement or the due execution
thereof, or for the form, character, genuineness, sufficiency, value or validity
of any of the Assets and the Custodian shall in no event assume or incur any
liability, duty or obligation to any Holder or to the Trustees,
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other than as expressly provided herein. The Custodian shall not be responsible
for or in respect of the validity of any signature by or on behalf of the
Trustees.
7. Litigation Obligations, Costs and Indemnity. The Custodian shall
not be under any obligation to appear in, prosecute or defend any action which
in its opinion may involve it in expense or liability, unless it shall be
furnished with such reasonable security and indemnity against such expense or
liability as it may require, and any pecuniary costs of the Custodian from such
actions shall be expenses which are reimbursable pursuant to paragraph 13
hereof.
8. Taxes; Trust Expenses. In no event shall the Custodian be
personally liable for any taxes or other governmental charges imposed upon or in
respect of the Assets or upon the monies, securities or other properties
included therein. The Custodian shall be reimbursed and indemnified by the
Trust for all such taxes and charges, for any tax or charge imposed against the
Trust and for any expenses, including counsel fees, interest, penalties and
additions to tax which the Custodian may sustain or incur with respect to such
taxes or charges.
9. Custodian Resignation, Succession. (a) The Custodian may resign
by executing an instrument in writing resigning as Custodian and delivering the
same to the Trustees, not less than 60 days before the date specified in such
instrument when, subject to clause (b) of this paragraph 9, such resignation is
to take effect. Upon receiving such notice of resignation, the Trustees shall
use their reasonable efforts promptly to appoint a successor Custodian in the
manner and meeting the qualifications provided in the Trust Agreement, by
written instrument or instruments delivered to the resigning Custodian and the
successor Custodian.
(b) In case no successor Custodian shall have been appointed within
30 days after notice of resignation has been received by the Trustees, the
resigning Custodian may forthwith apply to a court of competent jurisdiction for
the appointment of a successor Custodian. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribed, appoint a successor
Custodian.
10. Custodian Removal. The Trust may remove the Custodian upon 60
days' prior written notice to the Custodian and appoint a successor Custodian.
In case at any time the Custodian shall not meet the requirements set forth in
the Trust Agreement or shall become incapable of acting or if a court having
jurisdiction shall enter a decree or order for relief in respect of the
Custodian in an involuntary case, or the Custodian shall commence a voluntary
case, under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or any receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) for the Custodian or for any substantial part
of its property shall be appointed, or the Custodian shall make any general
assignment for the benefit of creditors, or shall generally fail to pay its
debts as they become due, the Trust may remove the Custodian immediately and
appoint a successor Custodian. The termination of the Administration Agreement
or the Paying Agent Agreement shall cause the removal of the Custodian
simultaneously therewith.
11. Transfers to Successor Custodian. Upon the request of any
successor Custodian, the Custodian hereunder shall, upon payment of all amounts
due it, execute and
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deliver an instrument acknowledged by it transferring to such successor
Custodian all the rights and powers of the retiring Custodian; and the retiring
Custodian shall transfer, deliver and pay over to the successor Custodian the
Assets at the time held by it hereunder, if any, together with all necessary
instruments of transfer and assignment or other documents properly executed
necessary to effect such transfer and such of the records or copies thereof
maintained by the retiring Custodian in the administration hereof as may be
requested by the successor Custodian, and shall thereupon be discharged from all
duties and responsibilities hereunder. Any resignation or removal of the
Custodian shall become effective upon such acceptance of appointment by the
successor Custodian. The indemnification of the resigning Custodian provided for
hereunder shall survive any resignation, discharge or removal of the Custodian
hereunder.
12. Custodian Merger, Consolidation. Any corporation into which the
Custodian may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, shall be the successor Custodian hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto or
thereto, provided that such corporation meets the requirements set forth in the
Trust Agreement.
13. Compensation; Expenses. The Custodian shall receive compensation
for performing the usual, ordinary, normal and recurring services under this
Custodian Agreement and, with the prior written approval of the Trust,
reimbursement for any and all expenses and disbursements incurred hereunder, as
provided in Section 3.1 of the Administration Agreement.
14. Section 17(f) Qualification. The Custodian hereby represents
that it is qualified to act as a custodian under Section 17(f) of the Investment
Company Act.
15. Custodian's Limited Liability. The Trust shall indemnify and
hold the Custodian harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements), liability or claim incurred by reason of any
inaccuracy in information furnished to the Custodian by the Trustees, or any act
or omission in the course of, connected with or arising out of any services to
be rendered hereunder, provided that the Custodian shall not be indemnified and
held harmless from and against any such loss, damages, cost, expense, liability
or claim arising from its willful misfeasance, bad faith or gross negligence in
the performance of its duties, or its reckless disregard of its duties and
obligations hereunder. Neither the Federal Reserve Book Entry System nor the
Depository Trust Company shall be deemed to be agents of the Custodian.
16. Rights of Set-Off; Banker's Lien. The Custodian hereby waives
all rights of set-off or banker's lien it may have with respect to the Assets
held by it as Custodian hereunder.
17. Termination. This Agreement shall terminate upon the earlier of
the termination of the Trust or the appointment of a successor Custodian.
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18. Choice of Law. This Agreement is executed and delivered in the
State of New York, and all laws or rules of construction of the State of New
York shall govern the right of the parties hereto and the interpretation of the
provisions hereof.
19. Notices. Any notice to be given to the Trust hereunder shall be
in writing and shall be duly given if mailed or delivered to DECS Trust V, c/o
Xxxxx Xxxxxxx, Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Tel. (000) 000-0000, Fax. (000) 000-0000, and to the Custodian if
mailed or delivered to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx, Tel.: (000) 000-0000, Fax:
(000) 000-0000 or at such other address as shall be specified by the addressee
to the other party hereto in writing.
20. No Third Party Beneficiaries. Nothing herein, express or
implied, shall give to any Person, other than the Trust, the Custodian and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
21. Amendments; Trust Agreement Changes; Waiver. This Agreement
shall not be deemed or construed to be modified, amended, rescinded, canceled or
waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The Trustees shall notify
the Custodian of any change in the Trust Agreement prior to the effective date
of any such change. Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
22. Counterparts. This Agreement may be signed in counterparts with
all counterparts constituting one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
DECS TRUST V
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
as Trustee
The Bank of New York
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxx
Title: Assistant Vice President
