FORM OF CUSTODY AGREEMENT
AGREEMENT, dated as of _____ __, 2004 by and between XXXXX XXXXXXXX MLP
INVESTMENT COMPANY, a non-diversified closed-end registered management
investment company organized and existing under the laws of the State of
Maryland (the "Company"), and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the "Custodian").
WHEREAS, the Company desires that the securities, funds and other assets
of the Company be held and administered by Custodian pursuant to this Agreement;
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in the 1940 Act (as hereinafter defined) to act as custodian for
management investment companies registered under the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any person authorized by resolution of the
Board of Directors to give Oral Instructions and Written Instructions on behalf
of the Company and identified, by name or by office, in Exhibit B hereto.
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1.2 "BOARD OF DIRECTORS" means the Board of Directors of the Company or,
when permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
Reserve Bank for securities of the United States government or of agencies or
instrumentalities thereof (including government-sponsored enterprises).
1.4 "BUSINESS DAY" means any day on which banks in the State of New Jersey
and New York are open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Company, which
is provided for in Section 3.2 below.
1.6 "DOMESTIC SECURITIES DEPOSITORY" means The Depository Trust Company
and any other clearing agency registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, which acts as a securities
depository.
1.7 "ELIGIBLE DOMESTIC BANK" means a bank as defined in the 1940 Act.
1.8 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
company or other entity organized under the laws of a country other than the
United States which is eligible under the 1940 Act to act as a custodian for
securities and other assets of the Company held outside the United States.
1.9 "ELIGIBLE FOREIGN SECURITIES DEPOSITORY" means an Eligible Securities
Depository as defined in Rule 17f-7 under the 0000 Xxx.
1.10 "FOREIGN ASSETS" has the same meaning as in Rule 17f-5
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under the 1940 Act.
1.11 "FOREIGN CUSTODY MANAGER" has the same meaning as in Rule 17f-5 under
the 1940 Act.
1.12 "MASTER REPURCHASE AGREEMENT" means the Master Repurchase Agreement
of even date herewith between the Company and Bear, Xxxxxxx & Co. Inc. ("Bear
Xxxxxxx") as it may from time to time be amended.
1.13 "1940 ACT" means the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
1.14 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) completed in
accordance with Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery by the Company.
1.15 "PROPER INSTRUCTIONS" means Oral Instructions or Written
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by the Company and Custodian.
1.17 "SECURITIES DEPOSITORY" means any Domestic Securities Depository or
Eligible Foreign Securities Depository.
1.18 "SHARES" means those shares in a series or class of the capital stock
of the Company that represent interests in the Company.
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1.19 "WRITTEN INSTRUCTIONS" means written communications received by
Custodian that are (a) reasonably believed by Custodian to have been signed or
sent by an Authorized Person, (b) sent or transmitted by letter, facsimile,
central processing unit connection, on-line terminal or magnetic tape, and (c)
completed in accordance with Custodian's requirements from time to time as to
content of instructions and their manner and timeliness of delivery by the
Company.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 APPOINTMENT. The Company hereby appoints Custodian as custodian of all
such securities, funds and other assets of the Company as may be acceptable to
Custodian and from time to time delivered to it by the Company or others for the
account of the Company.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF SECURITIES, FUNDS AND OTHER ASSETS
3.1 SEGREGATION. All securities and non-cash property of the Company in
the possession of Custodian (other than securities maintained by Custodian with
a sub-custodian appointed pursuant to this Agreement or in a Securities
Depository or Book-Entry System) shall be physically segregated from other such
securities and non-cash property in the possession of Custodian. All cash,
securities and other non-cash property of the Company shall be identified as
belonging to the Company and subject to this Agreement.
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3.2 CUSTODY ACCOUNT. (a) 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 Custodian, in which Custodian shall record and carry all securities,
funds and other assets of the Company which are delivered to Custodian and
accepted by it.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.10(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any securities of the Company
into the Custody Account and shall be entitled to return to the Company any
securities that it is holding in the Custody Account.
3.3 SECURITIES IN PHYSICAL FORM. Custodian may, but shall not be obligated
to, hold securities that may be held only in physical form.
3.4 DISCLOSURE TO ISSUERS OF SECURITIES. Custodian is authorized to
disclose the Company's name and address, and the securities positions in the
Custody Account, to the issuers of such securities when requested by them to do
so.
3.5 EMPLOYMENT OF DOMESTIC SUB-CUSTODIANS. At any time and from time to
time, Custodian in its discretion may appoint and employ, and may also cease to
employ, any Eligible Domestic Bank as sub-custodian to hold securities and other
assets of the Company that are maintained in the United States and to carry out
such other provisions of this Agreement as it may determine, provided, however,
that the employment of any such sub-custodian has been approved by the Company.
The employment of any such sub-custodian shall be at Custodian's expense and
shall not relieve Custodian of any of its obligations or liabilities under this
Agreement.
3.6 EMPLOYMENT OF FOREIGN SUB-CUSTODIANS. (a) Unless otherwise
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instructed in Written Instructions, Custodian is authorized to hold any Foreign
Asset of the Company in any country in which all or a portion of the primary
market for such Foreign Asset is situated.
(b) At any time and from time to time, Custodian in its discretion may
appoint and employ in accordance with the 1940 Act, and may also cease to
employ, (i) any overseas branch of any Eligible Domestic Bank, or (ii) any
Eligible Foreign Custodian selected by the Foreign Custody Manager, in each case
as a foreign sub-custodian for Foreign Assets of the Company, provided, however,
that the employment of any such overseas branch has been approved by the Company
and, provided further, that, in the case of any such Eligible Foreign Custodian,
the Foreign Custody Manager has approved the agreement pursuant to which
Custodian employs such Eligible Foreign Custodian.
(c) Set forth on Exhibit D hereto are the foreign sub-custodians that
Custodian may employ pursuant to Section 3.6(b) above. Exhibit D shall be
revised from time to time as foreign sub-custodians are added or deleted.
(d) If the Company proposes to make an investment that is to be held in a
country in which Custodian does not have appropriate arrangements in place with
either an overseas branch of an Eligible Domestic Bank or an Eligible Foreign
Custodian selected by the Foreign Custody Manager, then the Company shall inform
Custodian sufficiently in advance of such investment to allow Custodian to make
such arrangements.
(e) Notwithstanding anything to the contrary in Section 8.1 below,
Custodian shall have no greater liability to the Company for the actions or
omissions of any foreign sub-custodian appointed pursuant to this Agreement than
any such foreign sub-custodian has to Custodian, and Custodian shall not be
required to discharge any
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such liability which may be imposed on it unless and until such foreign
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
(f) Upon the request of the Foreign Custody Manager, Custodian shall
furnish to the Foreign Custody Manager information concerning all foreign
sub-custodians employed pursuant to this Agreement which shall be similar in
kind and scope to any such information that may have been furnished to the
Foreign Custody Manager in connection with the initial approval by the Foreign
Custody Manager of the agreements pursuant to which Custodian employs such
foreign sub-custodians or as otherwise required by the 1940 Act.
3.7 EMPLOYMENT OF OTHER AGENTS. Custodian may employ other suitable
agents, which may include affiliates of Custodian such as Bear Xxxxxxx, which is
a securities broker-dealer, provided, however, that Custodian shall not employ
Bear Xxxxxxx to hold any securities purchased from Bear Xxxxxxx under the Master
Repurchase Agreement or any other repurchase agreement between the Company and
Bear Xxxxxxx, whether now or hereafter in effect. The appointment of any agent
pursuant to this Section 3.7 shall not relieve Custodian of any of its
obligations or liabilities under this Agreement.
3.8 BANK ACCOUNTS. In its discretion and from time to time Custodian may
open and maintain one or more demand deposit accounts with any Eligible Domestic
Bank (any such accounts to be in the name of Custodian and subject only to its
draft or order), provided, however, that the opening and maintenance of any such
account shall be at Custodian's expense and shall not relieve Custodian of any
of its obligations or liabilities under this Agreement.
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3.9 DELIVERY OF ASSETS TO CUSTODIAN. Provided they are acceptable to
Custodian, the Company shall deliver to Custodian the Company's securities,
funds and other assets, including (a) payments of income, payments of principal
and capital distributions received by the Company with respect to securities,
funds or other assets owned by it at any time during the term of this Agreement,
and (b) funds received by the Company for the issuance, at any time during such
term, of its Shares. Custodian shall not be under any duty or obligation to
require the Company to deliver to it any securities or other assets owned by it
and shall have no responsibility or liability for or on account of securities or
other assets not so delivered.
3.10 DOMESTIC SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian
and any sub-custodian appointed pursuant to Section 3.5 above may deposit and/or
maintain securities of the Company in a Domestic Securities Depository or in a
Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of securities of the Company in any Domestic
Securities Depository or Book-Entry System, the Company shall deliver to
Custodian a resolution of the Board of Directors, certified by an officer of the
Company, authorizing and instructing Custodian (and any sub-custodian appointed
pursuant to Section 3.5 above) on an on-going basis to deposit in such Domestic
Securities Depository or Book-Entry System all securities eligible for deposit
therein and to make use of such Domestic Securities Depository or Book-Entry
System to the extent possible and practical in connection with the performance
of its obligations hereunder (or under the applicable sub-custody agreement in
the case of such sub-custodian), 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.
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(b) Securities of the Company kept in a Book-Entry System or Domestic
Securities Depository shall be kept in an account ("Depository Account") of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) in
such Book-Entry System or Domestic Securities Depository which includes only
assets held by Custodian (or such sub-custodian) as a fiduciary, custodian or
otherwise for customers.
(c) The records of Custodian with respect to securities of the Company
that are maintained in a Book-Entry System or Domestic Securities Depository
shall at all times identify such securities as belonging to the Company.
(d) If securities purchased by the Company are to be held in a Book-Entry
System or Domestic Securities Depository, Custodian (or any sub-custodian
appointed pursuant to Section 3.5 above) shall pay for such securities upon (i)
receipt of advice from the Book-Entry System or Domestic Securities Depository
that such securities have been transferred to the Depository Account, and (ii)
the making of an entry on the records of Custodian (or of such sub-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 Domestic Securities
Depository, Custodian (or such sub-custodian) shall transfer such securities
upon (A) receipt of advice from the Book-Entry System or Domestic Securities
Depository that payment for such securities has been transferred to the
Depository Account, and (B) the making of an entry on the records of Custodian
(or of such sub-custodian) to reflect such transfer and payment for the account
of the Company.
(e) Custodian shall provide the Company with copies of any report obtained
by Custodian (or by any sub-custodian appointed pursuant to Section 3.5 above)
from a Book-Entry System or Domestic
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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 Domestic Securities Depository.
(f) At its election, the Company shall be subrogated to the rights of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) with
respect to any claim against a Book-Entry System or Domestic Securities
Depository or any other person for any loss or damage to the Company arising
from the use of such Book-Entry System or Domestic Securities Depository, if and
to the extent that the Company has not been made whole for any such loss or
damage.
3.11 FOREIGN SECURITIES DEPOSITORIES. (a) Unless otherwise instructed in
Written Instructions, Custodian may place and maintain Foreign Assets of the
Company with an Eligible Foreign Securities Depository, provided that it has
delivered to the Company an analysis of the custody risks associated with
maintaining assets with such Eligible Securities Depository. Custodian shall
monitor such custody risks on a continuing basis and promptly notify the Company
of any material change in such risks.
(b) In performing its obligations under Section 3.11(a) above, Custodian
shall exercise reasonable care, prudence and diligence. In the exercise of such
reasonable care, prudence and diligence, Custodian may rely upon assessments,
determinations and monitoring made and performed with respect to an Eligible
Foreign Securities Depository by Citibank, N.A. or such other operator of a
global custody system as from time to time may be employed by Custodian and
approved by the Company.
3.12 RELATIONSHIP WITH SECURITIES DEPOSITORIES. No Book-Entry System,
Securities Depository, or other securities depository or
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clearing agency (whether foreign or domestic) which it is or may become standard
market practice to use for the comparison and settlement of trades in securities
shall be an agent or sub-contractor of Custodian for purposes of Section 3.7
above or otherwise.
3.13 PAYMENTS FROM CUSTODY ACCOUNT. Upon receipt of Proper Instructions
but subject to its right to foreclose upon and liquidate collateral pledged to
it pursuant to Section 9.3 below, Custodian shall make payments from the Custody
Account, but only in the following cases, provided, first, that such payments
are in connection with the clearance and/or custody of securities or other
assets, second, that there are sufficient funds in the Custody Account, whether
belonging to the Company or advanced to it by Custodian in its sole and absolute
discretion as set forth in Section 3.19 below, for Custodian to make such
payments, and, third, that after the making of such payments, the Company would
not be in violation of any margin or other requirements agreed upon pursuant to
Section 3.19 below:
(a) For the purchase of securities for the Company but only (i) in the
case of securities (other than options on securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any
sub-custodian appointed pursuant to this Agreement) of such securities
registered as provided in Section 3.21 below or in proper form for transfer or,
if the purchase of such securities is effected through a Book-Entry System or
Domestic Securities Depository, in accordance with the conditions set forth in
Section 3.10 above, and (ii) in the case of options, futures contracts and
options on futures contracts, against delivery to Custodian (or such
sub-custodian) of evidence of title thereto in favor of the Company, the
Custodian, any such sub-custodian, or any nominee referred to in Section 3.21
below;
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(b) In connection with the conversion, exchange or surrender, as set forth
in Section 3.14(f) below, of securities owned by the Company;
(c) For transfer in accordance with the provisions of any agreement among
the Company, Custodian and a securities broker-dealer, 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 of the Company;
(d) For transfer in accordance with the provisions of any agreement among
the Company, Custodian and a futures commission merchant, relating to compliance
with the rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding margin or other
deposits in connection with transactions of the Company;
(e) For the funding of any time deposit (whether certificated or not) or
other interest-bearing account with any banking institution (including
Custodian), provided that Custodian shall receive and retain such certificate,
advice, receipt or other evidence of deposit (if any) as such banking
institution may deliver with respect to any such deposit or account;
(f) For the purchase from a banking or other financial institution of loan
participations, but only if Custodian has in its possession a copy of the
agreement between the Company and such banking or other financial institution
with respect to the purchase of such loan participations and provided that
Custodian shall receive and retain such participation certificate or other
evidence of participation (if any) as such banking or other financial
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institution may deliver with respect to any such loan participation;
(g) For the purchase and/or sale of foreign currencies or of options to
purchase and/or sell foreign currencies, for spot or future delivery, for the
account of the Company pursuant to contracts between the Company and any banking
or other financial institution (including Custodian, any sub-custodian appointed
pursuant to this Agreement and any affiliate of Custodian);
(h) For transfer to a securities broker-dealer as margin for a short sale
of securities for the Company, or as payment in lieu of dividends paid on
securities sold short for the Company;
(i) For the payment as provided in Article IV below of any dividends,
capital gain distributions or other distributions declared on the Shares of the
Company;
(j) For the payment as provided in Article IV below of the redemption
price of the Shares of the Company;
(k) 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
Company: interest, taxes, and administration, investment advisory, accounting,
auditing, transfer agent, custodian, trustee and legal fees, and other operating
expenses of the Company; in all cases, whether or not such expenses are to be in
whole or in part capitalized or treated as deferred expenses; and
(l) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the amount and purpose of such payment, certifying such
purpose to be a proper purpose of the
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Company, and naming the person or persons to whom such payment is to be made.
3.14 DELIVERIES FROM CUSTODY ACCOUNT. Upon receipt of Proper Instructions
but subject to its right to foreclose upon and liquidate collateral pledged to
it pursuant to Section 9.3 below, Custodian shall release and deliver securities
and other assets from the Custody Account, but only in the following cases,
provided, first, that such deliveries are in connection with the clearance
and/or custody of securities or other assets, second, there are sufficient
amounts and types of securities or other assets in the Custody Account for
Custodian to make such deliveries, and, third, that after the making of such
deliveries, the Company would not be in violation of any margin or other
requirements agreed upon pursuant to Section 3.19 below:
(a) Upon the sale of securities for the account of such the Company but,
subject to Section 3.15 below, only against receipt of payment therefor or, if
such sale is effected through a Book-Entry System or Domestic Securities
Depository, in accordance with the provisions of Section 3.10 above;
(b) 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 funds or other consideration for such securities is to be delivered to
Custodian;
(c) To the issuer thereof or its agent when such securities are called,
redeemed or otherwise become payable, provided that in any such case the funds
or other consideration for such securities is to be delivered to Custodian;
(d) To the issuer thereof or its agent for exchange for a different number
of certificates or other evidence representing the
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same aggregate face amount or number of units; provided that, in any such case,
the new securities are to be delivered to Custodian;
(e) To the securities broker through whom securities are being sold for
the Company, for examination in accordance with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of 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
funds, if any, are to be delivered to Custodian;
(g) In the case of warrants, rights or similar securities, to the issuer
of such warrants, rights or similar securities, or its agent, upon the exercise
thereof, provided that, in any such case, the new securities and funds, if any,
are to be delivered to Custodian;
(h) To the borrower thereof, or its agent, in connection with any loans of
securities for the Company pursuant to any securities loan agreement entered
into by the Company, but only against receipt by Custodian of such collateral as
is required under such securities loan agreement;
(i) To any lender, or its agent, as collateral for any borrowings from
such lender by the Company that require a pledge of assets of the Company, but
only against receipt by Custodian of the amounts borrowed;
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(j) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Company;
(k) For delivery in accordance with the provisions of any agreement among
the Company, Custodian and a securities broker-dealer, 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 of the
Company;
(l) For delivery in accordance with the provisions of any agreement among
the Company, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding margin
or other deposits in connection with transactions of the Company;
(m) For delivery to a securities broker-dealer as margin for a short sale
of securities for the Company;
(n) To the issuer of American Depositary Receipts, International
Depositary Receipts or other similar receipts (hereinafter, collectively,
"ADRs") for such securities, or its agent, against a written receipt therefor
adequately describing such securities, provided that such securities are
delivered together with instructions to issue ADRs in the name of Custodian or
its nominee and to deliver such ADRs to Custodian;
(o) In the case of ADRs, to the issuer thereof, or its agent, against a
written receipt therefor adequately describing such ADRs, provided that such
ADRs are delivered together with instructions to
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deliver the securities underlying such ADRs to Custodian or an agent of
Custodian; or
(p) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the securities or other assets to be delivered, setting
forth the purpose for which such delivery is to be made, certifying such purpose
to be a proper purpose of the Company, and naming the person or persons to whom
delivery of such securities or other assets is to be made.
3.15 DELIVERY PRIOR TO FINAL PAYMENT. When instructed by the Company to
deliver its securities against payment, Custodian shall be entitled, but only if
in accordance with generally accepted market practice, to deliver such
securities prior to actual receipt of final payment therefor and, exclusively in
the case of securities in physical form, prior to receipt of payment therefor.
In any such case, the Company shall bear the risk that final payment for such
securities may not be made or that such securities may be returned or otherwise
held or disposed of by or through the person to whom they were delivered, and
Custodian shall have no liability for any of the foregoing.
3.16 CREDIT PRIOR TO FINAL PAYMENT. In its sole discretion and from time
to time, Custodian may credit the Custody Account, prior to actual receipt of
final payment thereof, with (a) proceeds from the sale of securities in the
Custody Account which it has been instructed to deliver against payment, (b)
proceeds from the redemption of securities or other assets in the Custody
Account, and (c) income from securities, funds or other assets in the Custody
Account. 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. Custodian may, in its sole discretion and from time to time, permit the
Company to use funds so credited to the Custody Account in anticipation of
actual
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receipt of final payment. Any funds so used shall constitute an advance subject
to Section 3.19 below.
3.17 DEFINITION OF FINAL PAYMENT. For purposes of this Agreement, "final
payment" means payment in funds which are (or have become) immediately
available, under applicable law are irreversible, and are not subject to any
security interest, xxxx, xxxx or other encumbrance.
3.18 PAYMENTS AND DELIVERIES OUTSIDE THE UNITED STATES. Notwithstanding
anything to the contrary that may be required by Section 3.13 or Section 3.14
above, or elsewhere in this Agreement, in the case of securities and other
assets maintained outside the United States and in the case of payments made
outside the United States, Custodian and any sub-custodian appointed pursuant to
this Agreement may receive and deliver such securities or other assets, and may
make such payments, in accordance with the laws, regulations, customs,
procedures and practices applicable in the relevant local market outside the
United States.
3.19 CLEARING CREDIT. Custodian may, in its sole discretion and from time
to time, advance funds to the Company to facilitate the settlement of
transactions in the Custody Account. Any such advance (a) shall be repayable
immediately upon demand made by Custodian, (b) shall be fully secured as
provided in Section 9.3 below, and (c) shall bear interest at such rate, and be
subject to such other terms and conditions, as Custodian and the Company may
agree.
3.20 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
instructed by the Company, Custodian shall with respect to all securities and
other assets held for the Company:
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(a) Subject to Section 8.4 below, receive into the Custody Account any
funds or other property, including payments of principal, interest and
dividends, due and payable on or on account of such securities and other assets;
(b) Deliver securities of the Company to the issuers of such securities or
their agents for the transfer thereof into the name of the Company, Custodian or
any of the nominees referred to in Section 3.21 below;
(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 of the United States, or the laws or
regulations of any other taxing authority, in connection with the transfer of
such securities or other assets or the receipt of income or other payments with
respect thereto;
(f) Receive and hold for the Company all rights and similar securities
issued with respect to securities or other assets of the Company;
(g) As may be required in the execution of Proper Instructions, transfer
funds from the Custody Account of the Company to any demand deposit account
maintained by Custodian pursuant to Section 3.8 above; and
(h) In general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase and
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transfer of, and other dealings in, such securities and other assets.
3.21 REGISTRATION AND TRANSFER OF SECURITIES. All securities held for the
Company under this Agreement that are issuable only in bearer form shall be held
by Custodian in that form, provided that any such securities shall be held in a
Securities Depository or Book-Entry System if eligible therefor. All other
securities and all other assets held for the Company may be registered in the
name of (a) Custodian as agent, (b) any sub-custodian appointed pursuant to this
Agreement, (c) any Securities Depository, or (d) any nominee or agent of any of
them. The Company shall furnish to Custodian appropriate instruments to enable
Custodian to hold or deliver in proper form for transfer, or to register as in
this Section 3.21 provided, any securities or other assets delivered to
Custodian which are registered in the name of the Company, Custodian or a
nominee of Custodian.
3.22 RECORDS. (a) Custodian shall maintain complete and accurate records
with respect to securities, funds and other assets 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 funds; (ii) ledgers (or other records) reflecting
(A) securities in transfer, if any, (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
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to securities, funds and
other assets of the Company which are held hereunder as the Company may
reasonably request.
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(b) All such books and records maintained by Custodian for the Company
under this Agreement 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 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 under the 1940 Act, be preserved for the periods
prescribed therein.
3.23 ACCOUNT REPORTS BY CUSTODIAN. Custodian shall furnish the Company
with a daily activity statement, including a summary of all transfers to or from
the Custody Account (in the case of securities and other assets maintained in
the United States, on the day following such transfers). At least monthly and
from time to time, Custodian shall furnish the Company with a detailed statement
of the securities, funds and other assets held for the Company under this
Agreement.
3.24 OTHER REPORTS BY CUSTODIAN. 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 Custodian or any sub-custodian appointed pursuant to this
Agreement.
3.25 PROXIES AND OTHER MATERIALS. (a) Unless otherwise instructed by the
Company, Custodian shall promptly deliver to the Company all notices of
meetings, proxy materials (other than proxies) and other announcements, which it
receives regarding securities held by it in the Custody Account. Whenever
Custodian or any of its agents receives a proxy with respect to securities in
the Custody Account, Custodian shall promptly request instructions
-21-
from the Company on how such securities are to be voted, and shall give such
proxy, or cause it to be given, in accordance with such instructions. If the
Company timely informs Custodian that the Company wishes to vote any such
securities in person, Custodian shall promptly seek to have a legal proxy
covering such securities issued to the Company. Unless otherwise instructed by
the Company, neither Custodian nor any of its agents shall exercise any voting
rights with respect to securities held hereunder.
(b) Unless otherwise instructed by the Company, Custodian shall promptly
transmit to the Company all other written information received by Custodian from
issuers of securities held in the Custody Account. With respect to tender or
exchange offers for such securities or with respect to other corporate
transactions involving such securities, Custodian shall promptly transmit to the
Company all written information received by Custodian from the issuers of such
securities or from any party (or its agents) making any such tender or exchange
offer or participating in such other corporate transaction. If the Company, with
respect to such tender or exchange offer or other corporate transaction, desires
to take any action that may be taken by it pursuant to the terms of such offer
or other transaction, the Company shall notify Custodian (i) in the case of
securities maintained outside the United States, such number of Business Days
prior to the date on which Custodian is to take such action as will allow
Custodian to take such action in the relevant local market for such securities
in a timely fashion, and (ii) in the case of all other securities, at least five
Business Days prior to the date on which Custodian is to take such action.
3.26 CO-OPERATION. 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 to compute the value of the assets of the
Company.
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ARTICLE IV
REDEMPTION OF SHARES;
DIVIDENDS AND OTHER DISTRIBUTIONS
4.1 TRANSFER OF FUNDS. From such funds as may be available for the purpose
in the Custody Account, and upon receipt of Proper Instructions specifying that
the funds are required to redeem Shares of the Company, Custodian shall transfer
each amount specified in such Proper Instructions to such account of the Company
or of an agent thereof (other than Custodian), at such bank, as the Company may
designate therein with respect to such amount.
4.2 SOLE DUTY OF CUSTODIAN. Custodian's sole obligation with respect to
the redemption of Shares of the Company and the payment of dividends and other
distributions thereon shall be its obligation set forth in Section 4.1 above,
and Custodian shall not be required to make any payments to the various holders
from time to time of Shares of the Company nor shall Custodian be responsible
for the payment or distribution by the Company, or any agent designated in
Proper Instructions given pursuant to Section 4.1 above, of any amount paid by
Custodian to the account of the Company or such agent in accordance with such
Proper Instructions.
ARTICLE V
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions to do so, 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 funds and/or securities,
including securities maintained in a Securities Depository:
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(a) in accordance with the provisions of any agreement among the Company,
Custodian and a securities broker-dealer (or any futures commission merchant),
relating to compliance with the rules of The Options Clearing Corporation or 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 of the Company,
(b) for purposes of segregating funds or securities in connection with
securities options purchased or written by the Company or in connection with
financial futures contracts (or options thereon) 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 requirements under the
1940 Act for the maintenance of segregated accounts by registered management
investment companies in connection with reverse repurchase agreements,
when-issued, delayed delivery and firm commitment transactions, and short sales
of securities, and
(e) for other proper purposes, but only upon receipt of Proper
Instructions, specifying the purpose or purposes of such segregated account and
certifying such purposes to be proper purposes of the Company.
ARTICLE VI
CERTAIN REPURCHASE TRANSACTIONS
6.1 TRANSACTIONS. If and to the extent that the necessary funds and
securities of the Company have been entrusted to it under
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this Agreement, and subject to Custodian's right to foreclose upon and liquidate
collateral pledged to it pursuant to Section 9.3 below, Custodian, as agent of
the Company, shall from time to time (and unless the Company gives it Proper
Instructions to do otherwise) make from the Custody Account the transfers of
funds and deliveries of securities which the Company is required to make
pursuant to the Master Repurchase Agreement and shall receive for the Custody
Account the transfers of funds and deliveries of securities which the seller
under the Master Repurchase Agreement is required to make pursuant thereto.
Custodian shall make and receive all such transfers and deliveries pursuant to,
and subject to the terms and conditions of, the Master Repurchase Agreement.
6.2 COLLATERAL. Custodian shall daily xxxx to market the securities
purchased under the Master Repurchase Agreement and held in the Custody Account,
and shall give to the seller thereunder any such notice as may be required
thereby in connection with such xxxx-to-market.
6.3 EVENTS OF DEFAULT. Custodian shall promptly notify the Company of any
event of default under the Master Repurchase Agreement (as such term "event of
default" is defined therein) of which it has actual knowledge.
6.4 MASTER REPURCHASE AGREEMENT. Custodian hereby acknowledges its receipt
from the Company of a copy of the Master Repurchase Agreement. The Company shall
provide Custodian, prior to the effectiveness thereof, with a copy of any
amendment to the Master Repurchase Agreement.
ARTICLE VII
[Intentionally omitted.]
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ARTICLE VIII
CONCERNING THE CUSTODIAN
8.1 STANDARD OF CARE. 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 attorneys' fees and disbursements), liability or claim which does not
arise from willful misfeasance, bad faith or negligence on the part of
Custodian. Custodian shall be entitled to rely on and may act upon advice of
counsel in all matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice. In no event shall Custodian be liable
for special, incidental or consequential damages, even if Custodian has been
advised of the possibility of such damages, or be liable in any manner
whatsoever for any action taken or omitted upon instructions from the Company or
any agent of the Company.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
considered to be the custodian of, any funds belonging to the Company or any
money represented by a check, draft or other instrument for the payment of
money, until Custodian or its agents actually receive such funds or collect on
such instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that it
is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any assets or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
Company whenever any money or property due and payable from or on account of any
securities or other assets held hereunder for the Company is not timely received
by it. Custodian shall not,
-26-
however, be required to enforce collection, by legal means or otherwise, of any
such money or other property not paid when due, but shall receive the proceeds
of such collections as may be effected by it or its agents in the ordinary
course of Custodian's custody and safekeeping business or of the custody and
safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. 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 Custodian. Custodian shall have no discretion whatsoever with respect to
the management, disposition or investment of the Custody Account and is not a
fiduciary to the Company. In particular, Custodian shall not be under any
obligation at any time to monitor or to take any other action with respect to
compliance by the Company with the 1940 Act, the provisions of the Company's
charter documents or by-laws, or its investment objectives, policies and
limitations as in effect from time to time.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION. The Company shall indemnify and hold harmless
Custodian, any sub-custodian appointed pursuant to this Agreement and any
nominee of any of them, from and against any loss, damages, cost, expense
(including attorneys' fees and disbursements), liability (including, without
limitation, liability arising under the Securities Act of 1933, the Securities
Exchange Act of 1934, the 1940 Act, and any federal, state or foreign securities
and/or banking laws) or claim arising directly or indirectly (a) from the fact
that securities or other assets in the Custody Account are registered in the
name of any such nominee, or (b) from any action or inaction by Custodian or
such sub-custodian
-27-
or nominee (i) at the request or direction of or in reliance on the advice of
the Company or any of its agents, or (ii) upon Proper Instructions, or (c)
generally, from the performance of its obligations under this Agreement,
provided that Custodian, any such sub-custodian or any nominee of any of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from willful misfeasance, bad
faith or negligence on the part of Custodian or any such sub-custodian or
nominee.
9.2 INDEMNITY TO BE PROVIDED. If the Company requests Custodian to take
any action with respect to securities or other assets of the Company, which may,
in the opinion of Custodian, result in Custodian or its nominee becoming liable
for the payment of money or incurring liability of some other form, Custodian
shall not be required to take such action until the Company shall have provided
indemnity therefor to Custodian in an amount and form satisfactory to Custodian.
9.3 SECURITY. As security for the payment of any present or future
obligation or liability of any kind which the Company may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, or which
the Company may otherwise have to Custodian, the Company hereby pledges to
Custodian all securities, funds and other assets of every kind which are in the
Custody Account or otherwise held for the Company pursuant to this Agreement,
and hereby grants to Custodian a lien, right of set-off and continuing security
interest in such securities, funds and other assets.
ARTICLE X
FORCE MAJEURE
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Custodian shall not 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; 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; actions by any governmental authority, de jure
or de facto; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS OF THE COMPANY. The Company represents and warrants
that (a) it has all necessary power and authority to perform its obligations
hereunder, (b) the execution and delivery by it of this Agreement, and the
performance by it of its obligations hereunder, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other instrument, restriction or provision applicable to it or by which it, or
its assets, may be bound, and (c) this Agreement constitutes a legal, valid and
binding obligation of the Company, enforceable against it in accordance with its
terms.
11.2 REPRESENTATIONS OF CUSTODIAN. Custodian represents and warrants that
(a) it has all necessary power and authority to perform its obligations
hereunder, (b) the execution and delivery by it of this Agreement, and the
performance by it of its obligations hereunder, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law,
-29-
or other instrument, restriction or provision applicable to it or by which it or
its assets may be bound, and (c) this Agreement constitutes a legal, valid and
binding obligation of it, enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
The Company shall pay Custodian such fees and charges as are set forth in
Exhibit A hereto, as such Exhibit A may from time to time be revised by
Custodian upon 14 days' prior written notice to the Company. Any annual fee or
other charges payable by the Company shall be paid monthly by automatic
deduction from funds available therefor in the Custody Account, or, if there are
no such funds, upon presentation of an invoice therefor. Out-of-pocket expenses
incurred by Custodian in the performance of its services hereunder for the
Company and all other proper charges and disbursements of the Custody Account
shall be charged to the Custody Account by Custodian and paid in the same manner
as the annual fee and other charges referred to in this Article XII.
ARTICLE XIII
TAXES
13.1 TAXES PAYABLE BY THE COMPANY. Any and all taxes, including any
interest and penalties with respect thereto, which may be levied or assessed
under present or future laws or in respect of the Custody Account or any income
thereof shall be charged to the Custody Account by Custodian and paid in the
same manner as the annual fee and other charges referred to in Article XII
above.
13.2 TAX RECLAIMS. Upon the written request of the Company, Custodian
shall exercise any tax reclaim rights of the Company
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which arise in connection with foreign securities in the Custody Account.
ARTICLE XIV
AUTHORIZED PERSONS; NOTICES
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
with any notice, confirmation, instruction or other communication which is
reasonably believed by Custodian to have been given or signed on behalf of the
Company by one of the Authorized Persons designated by the Company in Exhibit B
hereto, as it may from time to time be revised. The Company may revise Exhibit B
hereto at any time by notice in writing to Custodian given in accordance with
Section 14.4 below, but no revision of Exhibit B hereto shall be effective until
Custodian actually receives such notice.
14.2 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance with
Oral Instructions. All Oral Instructions shall be confirmed to Custodian in
Written Instructions. However, if Written Instructions confirming Oral
Instructions are not received by Custodian prior to a transaction, it shall in
no way affect the validity of the transaction authorized by such Oral
Instructions or the authorization given by an Authorized Person to effect such
transaction. Custodian shall incur no liability to the Company in acting upon
Oral Instructions. To the extent such Oral Instructions vary from any confirming
Written Instructions, Custodian shall advise the Company of such variance, but
unless confirming Written Instructions are timely received, such Oral
Instructions shall govern.
14.4 ADDRESSES FOR NOTICES. Unless otherwise specified herein, all
demands, notices, instructions, and other communications to be given hereunder
shall be sent, delivered or given to the recipient
-31-
at the address, or the relevant telephone number, set forth after its name
hereinbelow:
If to the Company:
XXXXX XXXXXXXX MLP INVESTMENT COMPANY
1800 Avenue of the Xxxxx, Xxxxx 0
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: __________________
Telephone: (800) ___-_____
Facsimile: (___) ___-_____
If to Custodian:
CUSTODIAL TRUST COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party hereto shall have provided to the other
by notice given in accordance with this Section 14.4. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
14.5 REMOTE CLEARANCE. With the prior consent in writing of Custodian, the
Company may give Remote Clearance Instructions (as defined hereinbelow) and Bulk
Input Instructions (as defined hereinbelow) for the receipt, delivery or
transfer of securities, provided that such Instructions are given in accordance
with the procedures prescribed by Custodian from time to time as to content of
instructions and their manner and timeliness of delivery by the Company.
Custodian shall be entitled to conclusively assume that all Remote Clearance
Instructions and Bulk Input Instructions have been given by an Authorized
Person, and Custodian is hereby irrevocably authorized to act in accordance
therewith. For purposes of this Agreement, "Remote Clearance Instructions" means
instructions that are input directly via a remote terminal which is
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located on the premises of the Company or its agent and is linked to Custodian;
and "Bulk Input Instructions" means instructions that are input by bulk input
computer tape delivered to Custodian by messenger or transmitted to it via such
transmission mechanism as the Company and Custodian shall from time to time
agree upon.
ARTICLE XV
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.
Upon the date set forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on that date (a) deliver directly to the successor custodian or its
agents all securities (other than securities held in a Book-Entry System or
Securities Depository) and other assets then owned by the Company and held by
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, provided that the Company shall have paid to Custodian all fees,
expenses and other amounts to the payment or reimbursement of which it shall
then be entitled.
ARTICLE XVI
LIMITATION OF LIABILITIES
To the extent that the trustees of the Trust are regarded as entering into
this Agreement, they do so only as trustees of the Company and not individually.
The obligations under this Agreement of the Company shall not be binding upon
any trustee, officer or employee of the Company individually. Such trustees,
officers, employees and holders, when acting in such capacities, shall not be
personally liable under this Agreement, and Custodian shall look
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solely to its assets and property for the performance of this Agreement and the
payment of any claim against it under this Agreement.
ARTICLE XVII
MISCELLANEOUS
17.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
Custodian to perform any function or duty on a day other than a Business Day.
17.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
17.3 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 or
statement of additional information 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.
17.4 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.
17.5 AMENDMENTS. This Agreement cannot be changed orally and, except as
otherwise provided herein with respect to the Exhibits
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attached hereto, no amendment to this Agreement shall be effective unless
evidenced by an instrument in writing executed by the parties hereto.
17.6 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.
17.7 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.
17.8 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. Any
purported assignment in violation of this Section 17.8 shall be void.
17.9 JURISDICTION. Any suit, action or proceeding with respect to this
Agreement may be brought in the Supreme Court of the State of New York, County
of New York, or in the United States District Court for the Southern District of
New York, and the parties hereto hereby submit to the non-exclusive jurisdiction
of such courts for the purpose of any such suit, action or proceeding, and
hereby waive for such purpose any other preferential jurisdiction by reason of
their present or future domicile or otherwise. Each of the parties hereto hereby
irrevocably waives its right to trial by jury in any suit, action or proceeding
with respect to this Agreement.
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17.10 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.
-36-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by its representative thereunto
duly authorized, all as of the day and year first above written.
XXXXX XXXXXXXX MLP INVESTMENT COMPANY
By: ____________________
Name:
Title:
CUSTODIAL TRUST COMPANY
By: _____________________
Name: Xxx Xxxxxxxxxxx
Title: President
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EXHIBIT A
CUSTODY FEES AND TRANSACTION CHARGES
ANNUAL FEE. The Company shall pay Custodian an annual fee equal to the
greater of (i) $5,000, and (ii) the sum of the amounts obtained by applying per
annum percentage rates to the value of the assets in the Custody Account as
follows:
- 0.03% (three basis points)to the first $50 million, plus
- 0.02% (two basis points) to the next $50 million, plus
- 0.01% (one basis point) to the next $900 million,
- to be agreed for all amounts over $1 billion,
with such fee to be payable monthly for the preceding month and with the
value of such assets for this purpose being their market value on the last
Business Day of the month for which such fee is charged.
DOMESTIC TRANSACTION CHARGES. The Company shall pay Custodian the
following transaction charges for transactions by the Company in the United
States, all such charges to be payable monthly:
(1) a transaction charge of $8 for each receive or deliver of book-entry
securities into or from the Custody Account (but not for any such receive or
deliver of book-entry securities loaned by the Company or constituting
collateral for a loan of securities, if applicable, or any such receive or
deliver in a repurchase transaction representing (i) a cash sweep investment for
the Company's account or (ii) the investment by the Company of cash collateral
for a loan of securities);
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(2) a transaction charge of $40 for each receive or deliver into or from
the Custody Account of securities in physical form;
(3) a transaction charge of $3 for each principal payment on
mortgage-backed and other asset-backed securities in the Custody Account;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Company's account,
computed on the basis of a 360-day year and for the actual number of days such
repurchase transaction is outstanding at a rate of 0.10% (ten basis points) per
annum on the amount of the purchase price paid by the Company in such repurchase
transaction;
(5) an administrative fee for each purchase in the Custody Account of
shares or other interests in a money market or other fund, which purchase
represents a cash sweep investment for the Company's account, computed for each
day that there is a positive balance in such fund to equal 1/365th of 0.10% (ten
basis points) on the amount of such positive balance for such day;
(6) a charge of $10 for each "free" domestic transfer of funds from the
Custody Account;
(7) a charge of $5 for each check issued by Custodian on behalf of
Customer, and
(8) a service charge for each holding of securities or other assets of the
Company that are sold by way of private placement or in such other manner as to
require services by Custodian which in its reasonable judgment are materially in
excess of those ordinarily required for the holding of publicly traded
securities in the United States.
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INTERNATIONAL FEES AND TRANSACTION CHARGES. The Company shall pay
Custodian the following fees and transaction charges for Foreign Assets in the
Custody Account and for transactions by the Company outside the United States,
all such fees and charges to be payable monthly:
(1) a transaction charge of $35 for each receive or deliver of book-entry
securities into or from the Custody Account that settle in Euroclear or
Clearstream;
(2) all fees and charges of the Eligible Foreign Custodian (or overseas
branch of an Eligible Domestic Bank) and/or Eligible Foreign Securities
Depository that are payable by Custodian with respect to Foreign Assets in the
Custody Account that are placed or maintained by Custodian with such Eligible
Foreign Custodian (or such overseas branch) and/or such Eligible Foreign
Securities Depository;
(3) a fee, in such amount as shall be determined by Custodian, for each
tax reclaim made by Custodian with respect to a Foreign Asset of the Company;
and
(4) a charge of $7 for each "free" international transfer of funds from
the Custody Account;
(5) a service charge for each holding of securities or other assets of the
Company that are sold by way of private placement or in such other manner as to
require services by Custodian which in its reasonable judgment are materially in
excess of those ordinarily required for the holding of Foreign Assets consisting
of publicly traded securities.
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EXHIBIT B
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Company to administer the Custody Account.
Name Signature
---- ---------
________________________________ __________________________________
________________________________ __________________________________
________________________________ __________________________________
________________________________ __________________________________
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EXHIBIT C
APPROVED FOREIGN SUB-CUSTODIANS AND SECURITIES DEPOSITORIES
Foreign Sub-custodian Country(ies) Securities
Depositories
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