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EXHIBIT j
CUSTODY AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of February,
2004, by and between XXXXXXXX MEZZANINE CAPITAL CORP., a Maryland corporation
(the "Company"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Custodian").
WHEREAS, the Company is a closed-end investment company, which has
elected to be treated as a business development company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and is authorized to issue
shares of common stock;
WHEREAS, the Company desires to retain U.S. Bank National Association
to act as Custodian for the Company's securities and cash;
WHEREAS, the Company desires that it's Securities (defined below) and
cash be held and administered by the Custodian pursuant to this Agreement; and
WHEREAS, the Custodian is a bank having the qualifications prescribed
in Section 26(a)(1) of the 1940 Act;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any Officer or other person duly
authorized by resolution of the Board of Directors to give
Oral Instructions and Written Instructions on behalf of the
Company and named in Exhibit A hereto or in such resolutions
of the Board of Directors, certified by an Officer, as may be
received by the Custodian from time to time.
1.2 "Board of Directors" shall mean the Directors from time to
time serving under the Company's Articles of Incorporation, as
from time to time amended.
1.3 "Book-Entry System" shall mean a federal book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such book-entry
regulations of federal agencies as are substantially in the
form of such Subpart O.
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1.4 "Business Day" shall mean any day recognized as a settlement
day by The New York Stock Exchange, Inc., and any other day
for which the Company computes the net asset value of Shares
of the Company except Saturday, Sunday or a statutory holiday
in Xxxxxxx, Xxxxxxx, Xxxxxx or New York, New York.
1.5 "Company Custody Account" shall mean any of the accounts in
the name of the Company, which is provided for in Section 3.2
below.
1.6 "NASD" shall mean The National Association of Securities
Dealers, Inc.
1.7 "Officer" shall mean the Chairman, President, any Vice
President, any Assistant Vice President, Corporate Secretary,
any Assistant Secretary the Chief Financial Officer, or any
assistant thereto of the Company.
1.8 "Oral Instructions" shall mean instructions orally transmitted
to and accepted by the Custodian because such instructions
are: (i) reasonably believed by the Custodian to have been
given by any two Authorized Persons, (ii) recorded and kept
among the records of the Custodian made in the ordinary course
of business and (iii) orally confirmed by the Custodian. The
Company shall cause all Oral Instructions to be confirmed by
Written Instructions prior to the end of the next Business
Day. If such Written Instructions confirming Oral Instructions
are not received by the Custodian prior to a transaction, it
shall in no way affect the validity of the transaction or the
authorization thereof by the Company. If Oral Instructions
vary from the Written Instructions that purport to confirm
them, the Custodian shall notify the Company of such variance
but such Oral Instructions will govern unless the Custodian
has not yet acted.
1.9 "Proper Instructions" shall mean Oral Instructions or Written
Instructions. Proper Instructions may be continuing Written
Instructions when deemed appropriate by both parties.
1.10 "Securities Depository" shall mean The Depository Trust
Company and any other clearing agency registered with the
Securities and Exchange Commission under Section 17A of the
Securities Exchange Act of 1934, as amended (the "1934 Act"),
which acts as a system for the central handling of Securities
where all Securities of any particular class or series of an
issuer deposited within the system are treated as fungible and
may be transferred or pledged by bookkeeping entry without
physical delivery of the Securities.
1.11 "Securities" shall include, without limitation, common and
preferred stocks, bonds, corporate loans, call options, put
options, debentures, notes, bank certificates of deposit,
bankers' acceptances, mortgage-backed securities or other
obligations, and any certificates, receipts, warrants or other
instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or
representing any other rights or interests therein, or any
similar property or assets that the Custodian has the
facilities to clear and to service.
1.12 "Shares" shall mean the shares of common stock issued by the
Company.
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1.13 "Sub-Custodian" shall mean and include (i) any branch of a
"U.S. Bank," as that term is defined in Rule 17f-5 under the
1940 Act, (ii) any "Eligible Foreign Custodian," as that term
is defined in Rule 17f-5 under the 1940 Act, having a contract
with the Custodian which the Custodian has determined will
provide reasonable care of assets of the Company based on the
standards specified in Section 3.3 below. Such contract shall
include provisions that provide: (i) for indemnification or
insurance arrangements (or any combination of the foregoing)
such that the Company will be adequately protected against the
risk of loss of assets held in accordance with such contract;
(ii) that the Company's assets will not be subject to any
right, charge, security interest, lien or claim of any kind in
favor of the Sub-Custodian or its creditors except a claim of
payment for their safe custody or administration, in the case
of cash deposits, liens or rights in favor of creditors of the
Sub-Custodian arising under bankruptcy, insolvency, or similar
laws; (iii) that beneficial ownership for the Company's assets
will be freely transferable without the payment of money or
value other than for safe custody or administration; (iv) that
adequate records will be maintained identifying the assets as
belonging to the Company or as being held by a third party for
the benefit of the Company; (v) that the Company's independent
public accountants will be given access to those records or
confirmation of the contents of those records; and (vi) that
the Company will receive periodic reports with respect to the
safekeeping of the Company's assets, including, but not
limited to, notification of any transfer to or from the
Company's account or a third party account containing assets
held for the benefit of the Company. Such contract may
contain, in lieu of any or all of the provisions specified
above, such other provisions that the Custodian determines
will provide, in their entirety, the same or a greater level
of care and protection for Company assets as the specified
provisions, in their entirety.
1.14 "Written Instructions" shall mean (i) written communications
actually received by the Custodian and signed by any two
Authorized Persons, or (ii) communications by telex or any
other such system from one or more persons reasonably believed
by the Custodian to be Authorized Persons, or (iii)
communications between electro-mechanical or electronic
devices provided that the use of such devices and the
procedures for the use thereof shall have been approved by
resolutions of the Board of Directors, a copy of which,
certified by an Officer, shall have been delivered to the
Custodian.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Company hereby appoints the Custodian as
custodian of all Securities and cash owned by or in the
possession of the Company at any time during the period of
this Agreement, on the terms and conditions set forth in this
Agreement, and the Custodian hereby accepts such appointment
and agrees to perform the services and duties set forth in
this Agreement. The Custodian hereby represents and warrants
to the Company that it is qualified to be a custodian to a
business development company pursuant to the requirements of
the 1940 Act.
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2.2 Documents to be Furnished. The following documents, including
any amendments thereto, will be provided contemporaneously
with the execution of the Agreement to the Custodian by the
Company:
(a) A copy of the Articles of Incorporation and Bylaws of the
Company;
(b) A copy of the resolution of the Board of Directors of the
Company appointing the Custodian;
(c) A copy of the then current prospectus of the Company; and
(d) A certification of the Chairman and Secretary of the
Company setting forth the names and signatures of the
current Officers of the Company and other Authorized
Persons.
2.3 Notice of Appointment of Dividend and Transfer Agent. The
Company has initially appointed Computershare Investor
Services, LLC and agrees to notify the Custodian in writing of
the appointment, termination or change in appointment of any
Dividend and Transfer Agent of the Company.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of the Company (other than
Securities maintained in a Securities Depository or Book-Entry
System) shall be physically segregated from other Securities
and non-cash property in the possession of the Custodian
(including the Securities and non-cash property of the other
series of the Company, if any) and shall be identified as
subject to this Agreement.
3.2 Company Custody Accounts. The Custodian shall open and
maintain in its trust department a custody account in the name
of the Company subject only to draft or order of the
Custodian, in which the Custodian shall enter and carry all
Securities, cash and other assets of the Company which are
delivered to it.
3.3 Appointment of Agents.
(a) In its discretion, the Custodian may appoint one or
more Sub-Custodians to act as Securities Depositories
or as sub-custodians to hold Securities and cash of
the Company and to carry out such other provisions of
this Agreement as it may determine, provided,
however, that the appointment of any such agents and
maintenance of any Securities and cash of the Company
shall be at the Custodian's expense and shall not
relieve the Custodian of any of its obligations or
liabilities under this Agreement.
(b) If, after the initial approval of Sub-Custodians by
the Board of Directors in connection with this
Agreement, the Custodian wishes to appoint other
Sub-Custodians to hold property of the Company, it
will so notify the Company and provide it with
information reasonably necessary to determine any
such new Sub-Custodian's eligibility under Rule 17f-5
under the 1940 Act, including a
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copy of the proposed agreement with such
Sub-Custodian. The Company shall at the meeting of
the Board of Directors next following receipt of such
notice and information give a written approval or
disapproval of the proposed action.
(c) The Agreement between the Custodian and each
Sub-Custodian acting hereunder shall contain the
required provisions set forth in Rule 17f-5(c)(2).
(d) At the end of each calendar quarter, the Custodian
shall provide written reports notifying the Board of
Directors of the placement of the Securities and cash
of the Company with a particular Sub-Custodian and of
any material changes in the Company's arrangements.
The Custodian shall promptly take such steps as may
be required to withdraw assets of the Company from
any Sub-Custodian that has ceased to meet the
requirements of Rule 17f-5 under the 1940 Act.
(e) With respect to its responsibilities under this
Section 3.3, the Custodian hereby represents and
warrants to the Company that it agrees to exercise
reasonable care, prudence and diligence such as a
person having responsibility for the safekeeping of
property of the Company. The Custodian further
represents and warrants that the Company's assets
will be subject to reasonable care, based on the
standards applicable to custodians in the relevant
market, if maintained with each Sub-Custodian, after
considering all factors relevant to the safekeeping
of such assets, including, without limitation: (i)
the Sub-Custodian's practices, procedures, and
internal controls, for certificated securities (if
applicable), the method of keeping custodial records,
and the security and data protection practices; (ii)
whether the Sub-Custodian has the requisite financial
strength to provide reasonable care for Company
assets; (iii) the Sub-Custodian's general reputation
and standing and, in the case of a Securities
Depository, the Securities Depository's operating
history and number of participants; and (iv) whether
the Company will have jurisdiction over and be able
to enforce judgments against the Sub-Custodian, such
as by virtue of the existence of any offices of the
Sub-Custodian in the United States or the
Sub-Custodian's consent to service of process in the
United States.
(f) The Custodian shall establish a system to monitor the
appropriateness of maintaining the Company's assets
with a particular Sub-Custodian and the contract
governing the Company's arrangements with such
Sub-Custodian.
3.4 Delivery of Assets to Custodian. The Company shall deliver, or
cause to be delivered, to the Custodian all of the Company's
Securities, cash and other assets, including (a) all payments
of income, payments of principal and capital distributions
received by the Company with respect to such Securities, cash
or other assets owned by the Company at any time during the
period of this Agreement, and (b) all cash received by the
Company for the issuance, at any time during such period, of
Shares. The Custodian shall not be responsible for such
Securities, cash or other assets until actually received by
it.
3.5 Manner of Holding Securities. The Custodian shall at all times
hold Securities of the Company either: (a) by physical
possession of the share certificates or other
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instruments representing such Securities in registered or
bearer form, subject to the following provisions:
(a) The Custodian may hold registrable portfolio
Securities which have been delivered to it in
physical form, by registering the same in the name of
the Company or its nominee, or in the name of the
Custodian or its nominee, for whose actions the
Company and Custodian, respectively, shall be fully
responsible. Upon the receipt of Proper Instructions,
the Custodian shall hold such Securities in street
certificate form, so called, with or without any
indication of fiduciary capacity. The Custodian will
hold such securities in the Company's name, unless,
however, the Custodian receives Proper Instructions
to register all such portfolio Securities in the name
of the Custodian's authorized nominee. All such
Securities shall be held in an account of the
Custodian containing only assets of the Company or
only assets held by the Custodian as a fiduciary,
provided that the records of the Custodian shall
indicate at all times the Company or other customer
for which such Securities are held in such accounts
and the respective interests therein.
(b) The Custodian may deposit and/or maintain Securities
of the Company in a Securities Depository or in a
Book-Entry System, subject to the following
provisions:
(i) The Custodian, on an on-going basis, shall
deposit in a Securities Depository or
Book-Entry System all Securities eligible
for deposit therein and shall make use of
such Securities Depository or Book-Entry
System to the extent possible and practical
in connection with its performance
hereunder, including, without limitation, in
connection with settlements of purchases and
sales of Securities, loans of Securities,
and deliveries and returns of collateral
consisting of Securities.
(ii) Securities of the Company kept in a
Book-Entry System or Securities Depository
shall be kept in an account ("Depository
Account") of the Custodian in such
Book-Entry System or Securities Depository
which includes only assets held by the
Custodian as a fiduciary, custodian or
otherwise for customers.
(iii) The records of the Custodian with respect to
Securities of the Company maintained in a
Book-Entry System or Securities Depository
shall, by book-entry, identify such
Securities as belonging to the Company.
(iv) If Securities purchased by the Company are
to be held in a Book-Entry System or
Securities Depository, the Custodian shall
pay for such Securities upon (i) receipt of
advice from the Book-Entry System or
Securities Depository that such Securities
have been transferred to the Depository
Account, and (ii) the making of an entry
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on the records of the Custodian to reflect
such payment and transfer for the account of
the Company. If Securities sold by the
Company are held in a Book-Entry System or
Securities Depository, the Custodian shall
transfer such Securities upon (i) receipt of
advice from the Book-Entry System or
Securities Depository that payment for such
Securities has been transferred to the
Depository Account, and (ii) the making of
an entry on the records of the Custodian to
reflect such transfer and payment for the
account of the Company.
(v) The Custodian shall provide the Company with
copies of any report (obtained by the
Custodian from a Book-Entry System or
Securities Depository in which Securities of
the Company are kept) on the internal
accounting controls and procedures for
safeguarding Securities deposited in such
Book-Entry System or Securities Depository.
(vi) Anything to the contrary in this Agreement
notwithstanding, the Custodian shall be
liable to the Company for any loss or damage
to the Company resulting (i) from the use of
a Book-Entry System or Securities Depository
by reason of any negligence or willful
misconduct on the part of Custodian or any
Sub-Custodian appointed pursuant to Section
3.3 above or any of its or their employees,
or (ii) from failure of Custodian or any
such Sub-Custodian to enforce effectively
such rights as it may have against a
Book-Entry System or Securities Depository.
At its election, the Company shall be
subrogated to the rights of the Custodian
with respect to any claim against a
Book-Entry System or Securities Depository
or any other person from any loss or damage
to the Company arising from the use of such
Book-Entry System or Securities Depository,
if and to the extent that the Company has
not been made whole for any such loss or
damage.
(vii) With respect to its responsibilities under
this Section 3.5 and pursuant to Rule 17f-4
under the 1940 Act, the Custodian hereby
represents and warrants to the Company that
it agrees to (i) exercise due care in
accordance with reasonable commercial
standards in discharging its duty as a
securities intermediary to obtain and
thereafter maintain such assets; (ii)
provide, promptly upon request by the
Company, such reports as are available
concerning the Custodian's internal
accounting controls and financial strength;
and (iii) require any Sub-Custodian to
exercise due care in accordance with
reasonable commercial standards in
discharging its duty as a securities
intermediary to obtain and thereafter
maintain assets corresponding to the
security entitlements of its entitlement
holders.
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3.6 Disbursement of Moneys from Company Custody Account. Upon
receipt of Proper Instructions, the Custodian shall disburse
moneys from the Company Custody Account but only in the
following cases:
(a) For the purchase of Securities for the Company but
only in accordance with Section 4.1 of this Agreement
and only (i) in the case of Securities (other than
options on Securities, futures contracts, foreign
currency contracts and options on futures contracts),
against the delivery to the Custodian (or any
Sub-Custodian appointed pursuant to Section 3.3
above) of such Securities registered as provided in
Section 3.9 below or in proper form for transfer, or
if the purchase of such Securities is effected
through a Book-Entry System or Securities Depository,
in accordance with the conditions set forth in
Section 3.5 above; (ii) in the case of options on
Securities, against delivery to the Custodian (or
such Sub-Custodian) of such receipts as are required
by the customs prevailing among dealers in such
options; (iii) in the case of futures contracts and
options on futures contracts, against delivery to the
Custodian (or such Sub-Custodian) of evidence of
title thereto in favor of the Company or any nominee
referred to in Section 3.9 below; (iv) in the case of
foreign currency contracts, for the funding of any
amounts payable by the Company on the close and/or
settlement of any foreign currency contracts against
delivery to the Custodian (or such Sub-Custodian) of
evidence of title thereto in favor of the Company or
any nominee referred to in Section 3.9 below; (v) in
the case of repurchase or reverse repurchase
agreements entered into between the Company and a
bank which is a member of the Federal Reserve System
or between the Company and a primary dealer in U.S.
Government securities, against delivery of the
purchased Securities either in certificate form or
through an entry crediting the Custodian's account at
a Book-Entry System or Securities Depository with
such Securities; and (vi) in the case of Securities
as to which payment for the Security and receipt of
the instrument evidencing the Security are under
generally accepted trade practice or the terms of the
instrument representing the Security expected to take
place in different locations or through separate
parties, such as commercial paper which is indexed to
foreign currency exchange rates, derivatives and
similar Securities, the Custodian may make payment
for such Securities prior to delivery thereof in
accordance with such generally accepted trade
practice or the terms of the instrument representing
such Security.
(b) In connection with the conversion, exchange or
surrender, as set forth in Section 3.7(f) below, of
Securities owned by the Company;
(c) For the payment of any dividends or capital gain
distributions declared by the Company;
(d) In payment of the price of Shares repurchased in open
market purchases or through tender offers as provided
in Section 5.1 below;
(e) For the payment of any expense or liability incurred
by the Company, including but not limited to the
following payments for the account of the
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Company: interest; taxes; administration, investment
advisory, accounting, auditing, transfer agent,
custodian, director and legal fees; loans; and other
operating expenses of the Company (including without
limitation all expenses set forth in the prospectus
as payable by the Company); in all cases, whether or
not such expenses are to be in whole or in part
capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any
agreement among the Company, the Custodian and a
broker-dealer registered under the 1934 Act and a
member of the NASD, relating to compliance with rules
of The Options Clearing Corporation and of any
registered national securities exchange (or of any
similar organization or organizations) regarding
escrow or other arrangements in connection with
transactions by the Company;
(g) For transfer in accordance with the provision of any
agreement among the Company, the Custodian, and a
futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with
the rules of the Commodity Futures Trading Commission
and/or any contract market (or any similar
organization or organizations) regarding account
deposits in connection with transactions by the
Company;
(h) For the funding of any uncertificated time deposit or
other interest-bearing account with any banking
institution (including the Custodian), which deposit
or account has a term of one year or less; and
(i) For any other proper purpose, but only upon receipt,
in addition to Proper Instructions, of a copy of a
resolution of the Board of Directors, certified by an
Officer, specifying the amount and purpose of such
payment, declaring such purpose to be a proper
corporate purpose, and naming the person or persons
to whom such payment is to be made.
3.7 Delivery of Securities from Company Custody Account. Upon
receipt of Proper Instructions, the Custodian shall release
and deliver Securities from the Company Custody Account but
only in the following cases:
(a) Upon the sale of Securities for the account of the
Company but only against receipt of payment therefor
in cash, by certified or cashiers check or bank
credit;
(b) In the case of a sale effected through a Book-Entry
System or Securities Depository, in accordance with
the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with
tender or other similar offers for Securities of the
Company; provided that, in any such case, the cash or
other consideration is to be delivered to the
Custodian;
(d) To the issuer thereof or its agent (i) for transfer
into the name of the Company, the Custodian or any
Sub-Custodian appointed pursuant to Section 3.3
above,
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or of any nominee or nominees of any of the
foregoing, or (ii) for exchange for a different
number of certificates or other evidence representing
the same aggregate face amount or number of units;
provided that, in any such case, the new Securities
are to be delivered to the Custodian;
(e) Securities held in physical form may be delivered and
paid for in accordance with "street delivery custom"
to a broker or its clearing agent, against delivery
to the Custodian of a receipt for such Securities
provided that the Custodian shall have taken
reasonable steps to ensure prompt collection of the
payment for, or return of, such Securities by the
broker or its clearing agent, and provided further
that the Custodian shall not be responsible for the
selection of or the failure or inability to perform
of such broker or its clearing agent or for any
related loss arising from delivery or custody of such
Securities prior to receiving payment therefor;
(f) For exchange or conversion pursuant to any plan or
merger, consolidation, recapitalization,
reorganization or readjustment of the issuer of such
Securities, or pursuant to provisions for conversion
contained in such Securities, or pursuant to any
deposit agreement, including surrender or receipt of
underlying Securities in connection with the issuance
or cancellation of depository receipts; provided
that, in any such case, the new Securities and cash,
if any, are to be delivered to the Custodian;
(g) Upon receipt of payment therefor pursuant to any
repurchase or reverse repurchase agreement entered
into by the Company;
(h) In the case of warrants, rights or similar
Securities, upon the exercise thereof, provided that,
in any such case, the new Securities and cash, if
any, are to be delivered to the Custodian;
(i) For delivery in connection with any loans of
Securities of the Company, but only against receipt
of such collateral as the Company shall have
specified to the Custodian in Proper Instructions;
(j) For delivery as security in connection with any
borrowings by the Company requiring a pledge of
assets by the Company, but only against receipt by
the Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation,
reorganization, merger, consolidation or
recapitalization of the Company;
(l) For delivery in accordance with the provisions of any
agreement among the Company, the Custodian and a
broker-dealer registered under the 1934 Act and a
member of the NASD, relating to compliance with the
rules of The Options Clearing Corporation and of any
registered national securities exchange (or of any
similar organization or organizations) regarding
escrow or other arrangements in connection with
transactions by the Company;
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(m) For delivery in accordance with the provisions of any
agreement among the Company, the Custodian, and a
futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with
the rules of the Commodity Futures Trading Commission
and/or any contract market (or any similar
organization or organizations) regarding account
deposits in connection with transactions by the
Company; or
(n) For any other proper corporate purpose, but only upon
receipt, in addition to Proper Instructions, of a
copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to
be delivered, setting forth the purpose for which
such delivery is to be made, declaring such purpose
to be a proper corporate purpose, and naming the
person or persons to whom delivery of such Securities
shall be made.
3.8 Actions Not Requiring Proper Instructions. Unless otherwise
instructed by the Company, the Custodian shall with respect to
all Securities held for the Company:
(a) Subject to Section 7.4 below, collect on a timely
basis all income and other payments to which the
Company is entitled either by law or pursuant to
custom in the securities business;
(b) Present for payment and, subject to Section 7.4
below, collect on a timely basis the amount payable
upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become payable;
(c) Endorse for collection, in the name of the Company,
checks, drafts and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary
form for Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or
certificates of ownership under the federal income
tax laws or the laws or regulations of any other
taxing authority now or hereafter in effect, and
prepare and submit reports to the Internal Revenue
Service ("IRS") and to the Company at such time, in
such manner and containing such information as is
prescribed by the IRS;
(f) Hold for the Company, either directly or, with
respect to Securities held therein, through a
Book-Entry System or Securities Depository, all
rights and similar securities issued with respect to
Securities of the Company; and
(g) In general, and except as otherwise directed in
Proper Instructions, attend to all non-discretionary
details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings
with Securities and assets of the Company.
3.9 Registration and Transfer of Securities. All Securities held
for the Company that are issued or issuable only in bearer
form shall be held by the Custodian in that form,
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provided that any such Securities shall be held in a
Book-Entry System if eligible therefor. All other Securities
held for the Company may be registered in the name of the
Company, the Custodian, or any Sub-Custodian appointed
pursuant to Section 3.3 above, or in the name of any nominee
of any of them, or in the name of a Book-Entry System,
Securities Depository or any nominee of either thereof. The
Company shall furnish to the Custodian appropriate instruments
to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of any of the nominees
hereinabove referred to or in the name of a Book-Entry System
or Securities Depository, any Securities registered in the
name of the Company.
3.10 Records.
(a) The Custodian shall maintain, for the Company,
complete and accurate records with respect to
Securities, cash or other property held for the
Company, including (i) journals or other records of
original entry containing an itemized daily record in
detail of all receipts and deliveries of Securities
and all receipts and disbursements of cash; (ii)
ledgers (or other records) reflecting (A) Securities
in transfer, (B) Securities in physical possession,
(C) monies and Securities borrowed and monies and
Securities loaned (together with a record of the
collateral therefor and substitutions of such
collateral), (D) dividends and interest received, and
(E) dividends receivable and interest receivable; and
(iii) canceled checks and bank records related
thereto. The Custodian shall keep such other books
and records of the Company as the Company shall
reasonably request, or as may be required by the 1940
Act, including, but not limited to, Section 31 of the
1940 Act and Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the
Custodian shall (i) be maintained in a form
acceptable to the Company and in compliance with
rules and regulations of the Securities and Exchange
Commission, (ii) be the property of the Company and
at all times during the regular business hours of the
Custodian be made available upon request for
inspection by duly authorized officers, employees or
agents of the Company and employees or agents of the
Securities and Exchange Commission, and (iii) if
required to be maintained by Rule 31a-1 under the
1940 Act, be preserved for the periods prescribed in
Rule 31a-2 under the 1940 Act.
(c) The Custodian agrees to provide the Company any
records and certifications necessary for the Company
to comply with disclosure controls and procedures
adopted in accordance with the Xxxxxxxx-Xxxxx Act.
Without limiting the generality of the foregoing, the
custodian shall cooperate with the Company, and its
other service providers, and assist the Company, and
its other service providers, as necessary by
providing information to enable the officers of the
Company to execute any required certifications.
3.11 Company Reports by Custodian. The Custodian shall furnish the
Company with a activity statement, on a daily or other basis
as directed by the Company, and a summary of all transfers to
or from the Company Custody Account on the day following such
transfers. At least monthly and from time to time, the
Custodian
12
shall furnish the Company with a detailed statement of the
Securities and moneys held by the Custodian and the
Sub-Custodians for the Company under this Agreement.
3.12 Other Reports by Custodian. The Custodian shall provide the
Company with such reports, as the Company may reasonably
request from time to time, on the internal accounting controls
and procedures for safeguarding Securities, which are employed
by the Custodian or any Sub-Custodian appointed pursuant to
Section 3.3 above.
3.13 Proxies and Other Materials. The Custodian shall cause all
proxies relating to Securities which are not registered in the
name of the Company, to be promptly executed by the registered
holder of such Securities, without indication of the manner in
which such proxies are to be voted, and shall promptly deliver
to the Company such proxies, all proxy soliciting materials
and all notices relating to such Securities.
3.14 Information on Corporate Actions. The Custodian shall promptly
deliver to the Company all information received by the
Custodian and pertaining to Securities being held by the
Company with respect to optional tender or exchange offers,
calls for redemption or purchase, or expiration of rights as
described in the Standards of Service Guide attached as
Exhibit B. If the Company desires to take action with respect
to any tender offer, exchange offer or other similar
transaction, the Company shall notify the Custodian at least
five Business Days prior to the date on which the Custodian is
to take such action. The Company will provide or cause to be
provided to the Custodian all relevant information for any
Security which has unique put/option provisions at least five
Business Days prior to the beginning date of the tender
period.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE COMPANY
4.1 Purchase of Securities. Promptly upon each purchase of
Securities for the Company, Written Instructions shall be
delivered to the Custodian, specifying (a) the name of the
issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal
amount (and accrued interest, if any) or other units
purchased, (c) the date of purchase and settlement, (d) the
purchase price per unit, (e) the total amount payable upon
such purchase, and (f) the name of the person to whom such
amount is payable. The Custodian shall upon receipt of such
Securities purchased by the Company pay out of the moneys held
for the account of the Company the total amount specified in
such Written Instructions to the person named therein. The
Custodian shall not be under any obligation to pay out moneys
to cover the cost of a purchase of Securities for the Company,
if in the Company Custody Account there is insufficient cash
available to the Company for which such purchase was made.
4.2 Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for the
purchase of Securities for the Company is made by the
Custodian in advance of receipt of the Securities purchased
but in the absence of
13
specified Written Instructions to so pay in advance, the
Custodian shall be liable to the Company for such Securities
to the same extent as if the Securities had been received by
the Custodian.
4.3 Sale of Securities. Promptly upon each sale of Securities by
the Company, Written Instructions shall be delivered to the
Custodian, specifying (a) the name of the issuer or writer of
such Securities, and the title or other description thereof,
(b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale
and settlement, (d) the sale price per unit, (e) the total
amount payable upon such sale, and (f) the person to whom such
Securities are to be delivered. Upon receipt of the total
amount payable to the Company as specified in such Written
Instructions, the Custodian shall deliver such Securities to
the person specified in such Written Instructions. Subject to
the foregoing, the Custodian may accept payment in such form
as shall be satisfactory to it, and may deliver Securities and
arrange for payment in accordance with the customs prevailing
among dealers in Securities.
4.4 Delivery of Securities Sold. Notwithstanding Section 4.3 above
or any other provision of this Agreement, the Custodian, when
instructed to deliver Securities against payment, shall be
entitled, if in accordance with generally accepted market
practice, to deliver such Securities prior to actual receipt
of final payment therefor.
4.5 Payment for Securities Sold, etc. In its sole discretion and
from time to time, the Custodian may credit the Company
Custody Account, prior to actual receipt of final payment
thereof, with (i) proceeds from the sale of Securities which
it has been instructed to deliver against payment, (ii)
proceeds from the redemption of Securities or other assets of
the Company, and (iii) income from cash, Securities or other
assets of the Company. Any such credit shall be conditional
upon actual receipt by Custodian of final payment and may be
reversed if final payment is not actually received in full.
The Custodian may, in its sole discretion and from time to
time, permit the Company to use funds so credited to the
Company Custody Account in anticipation of actual receipt of
final payment. Any such funds shall be repayable immediately
upon demand made by the Custodian at any time prior to the
actual receipt of all final payments in anticipation of which
funds were credited to the Company Custody Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in
its sole discretion and from time to time, advance funds to
the Company to facilitate the settlement of transactions in
the Company Custody Account. Any such advance shall be
repayable immediately upon demand made by Custodian.
ARTICLE V
REPURCHASE OF COMPANY SHARES
5.1 Transfer of Funds. From such funds as may be available for the
purpose in the Company Custody Account, and upon receipt of
Proper Instructions specifying that
14
the funds are required to repurchase Shares of the Company in
open market purchases or pursuant to a tender offer, the
Custodian shall wire each amount specified in such Proper
Instructions to or through such bank or broker-dealer as the
Company may designate with respect to such amount in such
Proper Instructions.
5.2 No Duty Regarding Paying Banks. Once the Custodian has wired
amounts to a bank or broker-dealer pursuant to Section 5.1
above, the Custodian shall not be under any obligation to
effect any further payment or distribution by such bank or
broker-dealer.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of the Company, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account,
(a) in accordance with the provisions of any agreement
among the Company, the Custodian and a broker-dealer
registered under the 1934 Act and a member of the
NASD (or any futures commission merchant registered
under the Commodity Exchange Act), relating to
compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission
or any registered contract market), or of any similar
organization or organizations, regarding escrow or
other arrangements in connection with transactions by
the Company,
(b) for purposes of segregating cash or Securities in
connection with securities options purchased or
written by the Company or in connection with
financial futures contracts (or options thereon) or
foreign exchange contracts purchased or sold by the
Company,
(c) which constitute collateral for loans of Securities
made by the Company,
(d) for purposes of compliance by the Company with
applicable requirements under the 1940 Act for the
maintenance of segregated accounts by investment
companies in connection with reverse repurchase
agreements and when-issued, delayed delivery and firm
commitment transactions, and
(e) for other proper corporate purposes, but only upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of
Directors, certified by an Officer, setting forth the
purpose or purposes of such segregated account and
declaring such purposes to be proper corporate
purposes.
Each segregated account established under this Article VI shall be
established and maintained for the Company only.
15
ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 Standard of Care. The Custodian shall be held to the exercise
of reasonable care in carrying out its obligations under this
Agreement, and shall be without liability to the Company for
any loss, damage, cost, expense (including reasonable
attorneys' fees and disbursements), liability or claim unless
such loss, damage, cost, expense, liability or claim arises
from negligence, bad faith or willful misconduct on its part
or on the part of any Sub-Custodian appointed pursuant to
Section 3.3 above. The Custodian shall not be under any
obligation at any time under this Agreement to ascertain
whether the Company is in compliance with the 1940 Act, the
regulations thereunder, the provisions of the Company's
charter documents or by-laws, or its investment objectives and
policies as then in effect.
7.2 Actual Collection Required. The Custodian shall not be liable
for, or considered to be the custodian of, any cash belonging
to the Company or any money represented by a check, draft or
other instrument for the payment of money, until the Custodian
or its agents actually receive such cash or collect on such
instrument.
7.3 No Responsibility for Title, etc. So long as and to the extent
that it is in the exercise of reasonable care, the Custodian
shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto
received or delivered by it pursuant to this Agreement.
7.4 Limitation on Duty to Collect. Custodian shall not be required
to enforce collection, by legal means or otherwise, of any
money or property due and payable with respect to Securities
held for the Company if such Securities are in default or
payment is not made after due demand or presentation.
7.5 Reliance Upon Documents and Instructions. The Custodian shall
be entitled to rely upon any certificate, notice or other
instrument in writing received by it and reasonably believed
by it to be genuine. The Custodian shall be entitled to rely
upon any Oral Instructions and any Written Instructions
actually received by it pursuant to this Agreement.
7.6 Express Duties Only. The Custodian shall have no duties or
obligations whatsoever except such duties and obligations as
are specifically set forth in this Agreement, and no covenant
or obligation shall be implied in this Agreement against the
Custodian.
7.7 Co-operation. The Custodian shall cooperate with and supply
necessary information to the entity or entities appointed by
the Company to keep the books of account of the Company and/or
compute the value of the assets of the Company. The Custodian
shall take all such reasonable actions as the Company may from
time to time request to enable the Company to obtain, from
year to year, favorable opinions from the Company's
independent accountants with respect to the Custodian's
activities hereunder in connection with (a) the preparation of
the Company's reports on
16
Forms 8-K, 10-Q, 10-K, any Company registration statement on
Form N-2, and any other reports required by any applicable
state and federal securities laws, and (b) the fulfillment by
the Company of any other requirements under any applicable
state and federal securities laws.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by Company. The Company shall indemnify and
hold harmless the Custodian and any Sub-Custodian appointed
pursuant to Section 3.3 above, and any nominee of the
Custodian or of such Sub-Custodian, from and against any loss,
damage, cost, expense (including reasonable attorneys' fees
and disbursements), liability (including, without limitation,
liability arising under the Securities Act of 1933, the 1934
Act, the 1940 Act, and any state or foreign securities and/or
banking laws) or claim arising (a) from the fact that
Securities are registered in the name of any such nominee, or
(b) from any action or inaction by the Custodian or such
Sub-Custodian (i) at the request or direction of or in
reliance on the advice of the Company, or (ii) upon Proper
Instructions, or (c) generally, from the performance of its
obligations under this Agreement or any sub-custody agreement
with a Sub-Custodian appointed pursuant to Section 3.3 above,
provided that neither the Custodian nor any such Sub-Custodian
shall be indemnified and held harmless from and against any
such loss, damage, cost, expense, liability or claim arising
from the Custodian's or such Sub-Custodian's negligence, bad
faith or willful misconduct.
8.2 Indemnification by Custodian. The Custodian shall indemnify
and hold harmless the Company from and against any loss,
damage, cost, expense (including reasonable attorneys' fees
and disbursements), liability (including without limitation,
liability arising under the Securities Act of 1933, the 1934
Act, the 1940 Act, and any state or foreign securities and/or
banking laws) or claim arising from the negligence, bad faith
or willful misconduct of the Custodian or any Sub-Custodian
appointed pursuant to Section 3.3 above, or any nominee of the
Custodian or of such Sub-Custodian.
8.3 Indemnity to be Provided. If the Company requests the
Custodian to take any action with respect to Securities, which
may, in the reasonable opinion of the Custodian, result in the
Custodian or its nominee becoming liable for the payment of
money or incurring liability of some other form, the Custodian
shall not be required to take such action until the Company
shall have provided indemnity therefor to the Custodian in an
amount and form reasonably satisfactory to the Custodian.
ARTICLE IX
FORCE MAJEURE
Neither the Custodian nor the Company shall be liable for any failure
or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, acts of God;
17
earthquakes; fires; floods; wars; civil or military disturbances; sabotage;
strikes; epidemics; riots; power failures; computer failure and any such
circumstances beyond its reasonable control as may cause interruption, loss or
malfunction of utility, transportation, computer (hardware or software) or
telephone communication service; accidents; labor disputes; acts of civil or
military authority; governmental actions; or inability to obtain labor,
material, equipment or transportation; provided, however, that the Custodian in
the event of a failure or delay (i) shall not discriminate against the Company
in favor of any other customer of the Custodian in making computer time and
personnel available to input or process the transactions contemplated by this
Agreement and (ii) shall use its best efforts to ameliorate the effects of any
such failure or delay.
ARTICLE X
EFFECTIVE PERIOD; TERMINATION
10.1 Effective Period. This Agreement shall become effective as of
the date first written above and, unless terminated sooner as
provided herein, continue automatically in effect for
successive annual periods. This Agreement may be terminated by
either party as hereinafter provided.
10.2 Termination. Either party hereto may terminate this Agreement
by giving to the other party a notice in writing specifying
the date of such termination, which shall be not less than
sixty (60) days after the date of the giving of such notice.
If a successor custodian shall have been appointed by the
Board of Directors, the Custodian shall, upon receipt of a
notice of acceptance by the successor custodian, on such
specified date of termination (a) deliver directly to the
successor custodian all Securities (other than Securities held
in a Book-Entry System or Securities Depository) and cash then
owned by the Company and held by the Custodian as custodian,
and (b) transfer any Securities held in a Book-Entry System or
Securities Depository to an account of or for the benefit of
the Company at the successor custodian. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations
under this Agreement. The Company may at any time immediately
terminate this Agreement in the event of the appointment of a
conservator or receiver for the Custodian by regulatory
authorities or upon the happening of a like event at the
direction of an appropriate regulatory agency or court of
competent jurisdiction.
10.3 Failure to Appoint Successor Custodian. If a successor
custodian is not designated by the Company on or before the
date of termination specified pursuant to Section 10.1 and/or
10.2 above, then the Custodian shall have the right to deliver
to a bank of its own selection, which (a) is a "bank" as
defined in the 1940 Act, (b) has aggregate capital, surplus
and undivided profits as shown on its then most recent
published report of not less than $25 million, and (c)
otherwise is qualified to be a custodian to a business
development company pursuant to the requirements of the 1940
Act, all Securities, cash and other property held by Custodian
under this Agreement and to transfer to an account of or for
the Company at such bank or trust company all Securities of
the Company held in a Book-Entry System or Securities
Depository. Upon such delivery and transfer, such bank or
trust company shall be the successor
18
custodian under this Agreement and the Custodian shall be
relieved of all obligations under this Agreement.
ARTICLE XI
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from
time to time by the Company and the Custodian. The fees and other charges in
effect on the date hereof and applicable to the Company are set forth in Exhibit
C attached hereto.
ARTICLE XII
LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Company hereunder
shall not be binding upon any member of the Board of Directors, shareholders,
nominees, officers, agents or employees of the Company personally, but shall
only bind the Company as provided in the Company's Articles of Incorporation, as
from time to time amended. The execution and delivery of this Agreement have
been authorized by the Board of Directors, and this Agreement has been signed
and delivered by an authorized officer of the Company, acting as such, and
neither such authorization by the Board of Directors nor such execution and
delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
only bind the Company as provided in the above-mentioned Articles of
Incorporation.
ARTICLE XIII
NOTICES
Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three (3) days after sent by
registered or certified mail, postage prepaid, return receipt requested, or on
the date sent and confirmed received by facsimile transmission to the other
party's address set forth below:
Notice to the Company shall be sent to:
Xxxxxxxx Mezzanine Capital Corp.
0000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
and notice to the Custodian shall be sent to:
U.S. Bank National Association
000 Xxxxxx Xxxxxx, M.L. CN-OH-W6TC
Xxxxxxxxxx, Xxxx XXX 00000
Attention: Mutual Fund Custody Services
Facsimile: (000) 000-0000
19
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XIII.
ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
14.2 References to Custodian. The Company shall not circulate any
printed matter which contains any reference to Custodian
without the prior written approval of Custodian, excepting
printed matter contained in the prospectus for the Company and
such other printed matter as merely identifies Custodian as
custodian for the Company. The Company shall submit printed
matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior
to any deadline for printing.
14.3 No Waiver. No failure by either party hereto to exercise, and
no delay by such party in exercising, any right hereunder
shall operate as a waiver thereof. The exercise by either
party hereto of any right hereunder shall not preclude the
exercise of any other right, and the remedies provided herein
are cumulative and not exclusive of any remedies provided at
law or in equity.
14.4 Amendments. This Agreement cannot be changed orally and no
amendment to this Agreement shall be effective unless
evidenced by an instrument in writing executed by the parties
hereto.
14.5 Counterparts. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate
counterparts, each of which shall be deemed an original but
all of which together shall constitute but one and the same
instrument.
14.6 Severability. If any provision of this Agreement shall be
invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of
the remaining provisions shall not be affected or impaired
thereby.
14.7 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that
this Agreement shall not be assignable by either party hereto
without the written consent of the other party hereto.
14.8 Headings. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning
or construction of any provision of this Agreement.
20
14.9 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter
hereof and supersedes all prior agreements, arrangements and
understandings, whether written or oral.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
XXXXXXXX MEZZANINE CAPITAL CORP. U.S. BANK, N.A.
By: _____________________________________ By:__________________________
Xxxxxx X. Xxxxxx Xxx X. Xxxxxxx
Title: President and Chief Executive Officer Title: Senior Vice President
21
EXHIBIT A
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Company to administer the Company Custody Accounts.
SPECIMEN SIGNATURES
XXXXXXXX MEZZANINE CAPITAL CORP.
President and Chief Executive Officer
___________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer and Treasurer
___________________________________
Tab A. Xxxxxxxxx
XXXXXXXX CAPITAL MANAGEMENT, L.L.C.
Chief Executive Officer and Treasurer
___________________________________
Xxxxxx X. Xxxxxx
Principal
___________________________________
Xxxxx X. Xxxxx
Principal
___________________________________
Xxxxxxx X. Xxxxxx
Principal, Vice President
and Chief Financial Officer ___________________________________
Tab X. Xxxxxxxxx
___________________________________
___________________________________
___________________________________
___________________________________
22
EXHIBIT B
U.S. BANK INSTITUTIONAL CUSTODY SERVICES
STANDARDS OF SERVICE GUIDE
U.S. Bank, N.A. is committed to providing superior quality service to
all customers and their agents at all times. We have compiled this guide as a
tool for our clients to determine our standards for the processing of security
settlements, payment collection, and capital change transactions. Deadlines
recited in this guide represent the times required for U.S. Bank to guarantee
processing. Failure to meet these deadlines will result in settlement at our
client's risk. In all cases, U.S. Bank will make every effort to complete all
processing on a timely basis.
U.S. Bank is a direct participant of the Depository Trust Company, a
direct member of the Federal Reserve Bank of Cleveland, and utilizes the Bank of
New York as its agent for ineligible and foreign securities.
For corporate reorganizations, U.S. Bank utilizes SEI's Reorg Source,
Financial Information, Inc., XCITEK, DTC Important Notices, Capital Changes
Daily (CCH) and The Wall Street Journal.
For bond calls and mandatory puts, U.S. Bank utilizes SEI's Bond
Source, Xxxxx Information Systems, Standard & Poor's Corporation, XCITEK, and
DTC Important Notices. U.S. Bank will not notify clients of optional put
opportunities.
Any securities delivered free to U.S. Bank or its agents must be
received three (3) business days prior to any payment or settlement in order for
the U.S. Bank standards of service to apply.
Should you have any questions regarding the information contained in
this guide, please feel free to contact your account representative.
The information contained in this Standards of Service Guide
is subject to change. Should any changes be made U.S. Bank
will provide you with an updated copy of its Standards of
Service Guide.
23
U.S. BANK SECURITY SETTLEMENT STANDARDS
TRANSACTION TYPE INSTRUCTIONS DEADLINES* DELIVERY INSTRUCTIONS
-------------------------------------- ------------------------------------------------ ----------------------------------------
DTC 1:30 P.M. on Settlement Date DTC Participant #0000
Xxxxx Xxxx XX 00000
Institutional #________________
For Account #____________
Federal Reserve Book Entry 12:30 P.M. on Settlement Date Federal Reserve Bank of Cleveland
for Firstar Bank, N.A. ABA# 000000000
CINTI/1050
For Account #_____________
Federal Reserve Book Entry (Repurchase 1:00 P.M. on Settlement Date Federal Reserve Bank of Cleveland
Agreement Collateral Only) for Firstar Bank, N.A. ABA# 000000000
CINTI/1040
For Account #_____________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BYORK
(GNMA Book Entry) Firstar Bank / 117612
Physical Securities 9:30 A.M. EST on Settlement Date Bank of New York
(for Deliveries, by 4:00 P.M. on Settlement Date Xxx Xxxx Xxxxxx- 0xx Xxxxx - Xxxxxx A
minus 1) Xxx Xxxx, XX 00000
For account of Firstar Bank / Cust
#117612
Attn: Xxxxxx Xxxxxx
CEDEL/EURO-CLEAR 11:00 A..M. on Settlement Date minus 2 Cedel a/c 55021
FFC: a/c 387000
Firstar Bank /Global Omnibus
Euroclear a/c 97816
FFC: a/c 387000
Firstar Bank/Global Omnibus
Cash Wire Transfer 3:00 P.M. Firstar Bank, X.X. Xxxxx/Trust ABA#
042000013
Credit Account #112950027
Account of Firstar Trust Services
Further Credit to ___________
Account # _______________
* All times listed are Eastern Standard Time.
24
U.S. BANK PAYMENT STANDARDS
SECURITY TYPE INCOME PRINCIPAL
------------------------------------ ---------------- ----------------
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs *
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Certificates* Payable Date Payable Date
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank Book Entry Payable Date Payable Date
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
NOTE: If a payable date falls on a weekend or bank holiday, payment
will be made on the immediately following business day.
25
U.S. BANK CORPORATE REORGANIZATION STANDARDS
DEADLINE FOR CLIENT INSTRUCTIONS TRANSACTION
TYPE OF ACTION NOTIFICATION TO CLIENT TO U.S. BANK POSTING
--------------------------------- ------------------------------------------ ----------------------------------- ------------
Rights, Warrants, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
and Optional Mergers expiration or receipt of notice
Mandatory Puts with Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Option to Retain expiration or receipt of notice
Class Actions 10 business days prior to expiration date 5 business days prior to expiration Upon receipt
Voluntary Tenders, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Exchanges, expiration or receipt of notice
and Conversions
Mandatory Puts, Defaults, At posting of funds or securities received None Upon receipt
Liquidations, Bankruptcies, Stock
Splits, Mandatory Exchanges
Full and Partial Calls Later of 10 business days prior to None Upon receipt
expiration or receipt of notice
NOTE: Fractional shares/par amounts resulting from any of the above
will be sold.
26
EXHIBIT C
DOMESTIC CUSTODY FEE SCHEDULE:
1.5 basis points on all assets plus transactions
Minimum annual fee: $5,000 per portfolio
Custody Services: Portfolio Transaction Fees:
$ 5.00 per disbursement (waived if U.S. Bancorp is administrator)
$ 7.00 per repurchase agreement transaction
$ 9.00 per book entry security (depository or Federal Reserve system)
$ 25.00 per portfolio transaction processed through our New York
custodian definitive security (physical)
$ 9.00 per GNMA Amortized security purchase
$ 8.00 per GNMA principal/interest paydown, GNMA sales
$ 15.00 per option/future contract written, exercised or expired
$ 50.00 per Cedel/Euroclear transaction
$ 15.00 per mutual fund trade
$ 15.00 per Fed Wire or withdrawal
$ 10.00 per margin variation
$ 6.00 per short sale
$ 6.00 per paydown transaction
- A transaction is a purchase/sale of a security, free receipt/free delivery,
maturity, tender or exchange.
- No charge for the initial conversion free receipt.
- Overdrafts - charged to the account at prime interest rate.
- Plus out-of-pocket expenses, and extraordinary expenses based upon
complexity, including items such as shipping fees or transfer fees.
Extraordinary services - quoted separately
Plus out-of-pocket expenses, including but not limited to:
Postage, Stationery
Programming /customization requested by the Company
Retention of records
Special reports
Federal and state regulatory filing fees
Out-of-pocket expenses from U.S. Bancorp participation in client
meetings Auditing and legal out-of-pocket expenses
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