CUSTODY AGREEMENT
This agreement (the “Agreement”) dated
as of January ___, 2011 between Business Development Corporation of America, a
corporation organized and existing under the laws of the state of Maryland,
having a place of business located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx XX
00000 (the “Fund”) and any additional affiliates or subsidiaries of the Fund as
provided herein and AMEGY BANK NATIONAL ASSOCIATION, a national banking
association having a place of business at 0000 XxXxxxxx Xxxxxx Xxxxx X-0,
Xxxxxxx, Xxxxx, 00000 (the “Custodian”).
WITNESSETH:
That for and in consideration of the
mutual promises hereinafter set forth the Fund and the Custodian hereby agree as
follows:
ARTICLE
1
DEFINITIONS
Whenever used in this Agreement, the
following words shall have the meanings set forth below:
1. “1940 Act” shall mean the
Investment Company Act of 1940, as amended.
2. “Authorized Person” shall be
any person, whether or not an officer or employee of the Fund or an affiliate or
subsidiary of the fund, duly authorized according to a Certificate to give any
Instruction with respect to one or more Accounts, such persons to be designated
in the Certificate annexed hereto as Schedule 1 hereto or such other
super-ceding Certificate as may be received by Custodian from time to time. Such
persons so designated shall continue to be Authorized Persons until such time as
Custodian received a superceding Certificate from the Fund or an affiliate or
subsidiary of the Fund, that any such person is no longer an Authorized
Person.
3. “Book-Entry System” shall
mean the Federal Reserve/Treasury book-entry system for receiving and delivering
securities, its successors and nominees.
4. “Business Day” shall mean any
day on which Custodian and relevant Depositories are open for
business.
5. “Certificate” shall mean any
written notice, signed by an officer of the Fund or an affiliate or subsidiary
of the Fund so authorized, which certifies to Custodian the names and signatures
of those persons designated Authorized Persons, and the names of the members of
the Fund’s Board of Directors, or an affiliate or subsidiary’s Board of
Directors, together with any changes which may occur from time to
time.
6. “Depository” shall include (a)
the Book-Entry System, (b) the Depository Trust Company, (c) any other clearing
agency or securities depository registered with the Securities and Exchange
Commission identified to the Fund from time to time, and (d) the respective
successors and nominees of the foregoing.
7. “Instructions” shall mean the
communications that contain all information reasonably requested by Custodian to
enable Custodian to carry out Instructions which are actually received by
Custodian by S.W.I.F.T., tested telex, letter, facsimile transmission, or other
method or system specified by Custodian as available for use in connection with
the services hereunder. Custodian shall act on Instructions only if Custodian
reasonably believes in good faith that such Instructions have been given by an
Authorized Person.
8. “Securities” shall include,
without limitation, any common stock and other equity securities, bonds,
debentures and other debt securities, notes, mortgages or other obligations, and
any instruments representing rights to receive, purchase, or subscribe for the
same, or representing any rights or interests therein (whether
represented by a certificate or held in a Depository).
ARTICLE
II
APPOINTMENT
OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS,
WARRANTIES AND COVENANTS
1. (a)
The Fund hereby appoints Custodian to keep and maintain all Securities and cash
at any time delivered to Custodian during the term of this Agreement. The Fund
hereby authorizes Custodian to hold securities in registered form in its name or
the name of its nominees or other form satisfactory to the Fund. Custodian
hereby accepts such appointment. Custodian agrees to establish and maintain the
following accounts (each an “Account”; collectively, the “Accounts”), subject
only to draft or order by Custodian acting pursuant to the terms of this
Agreement.
(i) a
securities account in the name of the Fund for Securities, which may be received
by or on behalf of Custodian for the account of the fund; and
(ii) an
account pursuant to Rule 17f-3 under the 1940 Act in the name of the Fund (the
“Cash Account”) for any and all cash received by or on behalf of Custodian for
the account of the Fund.
Custodian
shall maintain books and records regarding the Accounts in accordance with
industry standards relating to custody accounts of the nature described
herein.
(b) Custodian may from time to time establish on its books and records
such sub-accounts within each Account as the Fund and the Custodian may agree
(each a “Special Account”), and Custodian shall reflect therein such assets as
the Fund may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish, pursuant to a written
agreement with and for the benefit of a broker, dealer, future commission
merchant or other third party identified in Instructions, such accounts of such
terms and conditions as the Fund and Custodian shall agree, and Custodian shall
transfer to such account such Securities and money as the Fund may specify in
Instructions.
2. The
Fund hereby represents and warrants that:
(a) It is duly organized and existing under the laws of the jurisdiction
of its organization, with full power to carry on its business as now conducted,
to enter into this Agreement, and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered by
the Fund, approved by a resolution of its board, constitutes a valid and legally
binding obligation of the Fund, enforceable in accordance with its terms, and
there is no statute, regulation, rule, order or judgment binding on it, and no
provision of its charter or by-laws or other contract binding on it which would
prohibit its execution or performance of this Agreement;
(c) It is fully informed of the protections and risks associated with
various methods of transmitting Instructions and delivering Certificates to
Custodian, shall, and shall cause each Authorized Person to safeguard and treat
with extreme care any user authorization codes, passwords and/or authorization
keys, understands that there may be more secure methods of transmitting or
delivering the same than the methods selected by it, agrees that the security
procedures (if any) to be followed in connection therewith provide a
commercially reasonable degree of protection in light of its particular needs
and circumstances;
(d) Its transmission or giving of, and Custodian acting upon and in
reliance on, Certificates or Instructions pursuant to this Agreement shall at
all times comply with the 40 Act;
3. The
Fund hereby covenants that it shall from time to time complete and execute and
deliver to Custodian upon Custodian’s request a Form FR U-1 (or successor
thereto) whenever the Fund borrows from Custodian any money to be used for the
purchase or carrying of margin stock as defined in Federal Reserve Regulation
U.
4.
Custodian represents and warrants that (i) assuming execution and delivery of
this Agreement by the Fund, this Agreement is Custodian’s legal, valid and
binding obligation, enforceable in accordance with its terms; (ii) it has full
power and authority to enter into and has taken all necessary corporate action
to authorize the execution of this Agreement and (iii) in the event that it
becomes necessary to engage a foreign sub-custodian, any engagement of such will
be in accordance with Rule 17f-5 of the 1940 Act.
5. The
Fund, from time to time, may request Custodian to establish additional accounts
for affiliates or subsidiaries of the Fund. Any such additional Accounts shall
be governed by the terms of the Agreement and any such affiliates or
subsidiaries shall furnish such Certificates and other information as Custodian
may require to enable Custodian to apply with any applicable laws and
regulations applicable to Custodian. Any requirements contained in this
Agreement applicable to the Fund shall also apply to any Accounts maintained by
Custodian for any affiliate or subsidiary of the Fund. Custodian may require a
separate agreement be executed between Custodian and affiliate or
subsidiary.
ARTICLE
III
CUSTODY
AND RELATED SERVICES
1.
Custodian shall hold in a separate account, and physically segregate at all
times from those of any other persons, firms or corporations, pursuant to the
provisions hereof, all securities received by it for or for the account of the
Fund. All such securities are to be held or disposed of by Custodian at all
times pursuant to Instructions, pursuant to this Agreement. The Custodian shall
have no power or authority to assign, hypothecate, pledge or otherwise dispose
of any such securities or investments, except pursuant to the directive of the
Fund and only for the account of the Fund as set forth otherwise in this
Agreement.
(a) Custodian will identify in its records and hold and physically
segregate, where Securities are issued in physical form, for the Fund all
Securities to the Fund’s Accounts.
(b) Custodian is authorized, in its discretion to utilize
Depositories. With respect to each Depository, Custodian (i) shall exercise due
care in accordance with reasonable commercial standards in discharging its
duties as a securities intermediary to obtain and thereafter maintain Securities
or other financial assets deposited or held in such Depository, and (ii) will
provide promptly upon request by the Fund, such reports as are available
concerning the internal accounting controls and financial strength of the
Custodian. Each Depository utilized by Custodian shall at all times comply with
rule 17f-4 under the 1940 Act.
(c) It is not currently anticipated that Custodian will utilize a
foreign securities depository (as that term is defined by Rule 17f-7 under the
1940 Act).
2.
Custodian shall furnish the Fund with an advice of daily transactions (including
a confirmation of each transfer of Securities) and a monthly summary of all
transfers to or from the Accounts.
3. With
respect to all Securities held hereunder, Custodian shall, unless otherwise
instructed to the contrary:
(a) Receive all income and other payments and advise the Fund as promptly
as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all Securities
which may mature and advise the Fund as promptly as practicable of any such
amounts due but not paid, provided, however, Custodian shall have no obligation
to collect any payments that may due pursuant to any Securities that are
promissory notes extended by the Fund;
(c) Forward to the Fund copies of all information or documents that it
may actually receive from an issuer of Securities which, in the opinion of
Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, and certificates of ownership, affidavits,
declarations or other certificates under any tax laws now or hereafter in effect
in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository all rights and similar
Securities issued with respect to any Securities credited to an Account
hereunder; and
(f) Endorse for collection checks, drafts or other negotiable
instruments.
4. (a)
Custodian shall notify the Fund of rights or discretionary actions with respect
to Securities held hereunder, and of the date or dates by when such rights must
be exercised or such action must be taken, provided that Custodian has actually
received, from the Issuer or the relevant Depository or a nationally recognized
bond or corporate action service to which Custodian subscribes, timely notice of
such rights or discretionary corporate action or of the date or dates such
rights must be exercised or such action must be taken. Absent actual receipt of
such notice, Custodian shall have no liability for failing to so notify the
Fund.
(b) Whenever Securities (including, but not limited to, warrants,
options, tenders, options to tender or non-mandatory puts or calls) confer
discretionary rights on the Fund or provide for discretionary action or
alternative courses of action by the Fund, the Fund shall be responsible for
making any decisions relating thereto and for directing Custodian to act. In
order for Custodian to act, it must receive the Fund’s Certificate of
Instructions at Custodian’s offices, addressed as Custodian may from time to
time request, but not later than noon (Houston time) at least two (2) Business
Days prior to the last scheduled date to act with respect to such securities.
Absent Custodian’s timely receipt of such Instructions, Custodian shall not be
liable for failure to take any action relating to or to exercise any rights
conferred by such Securities.
5. All
voting rights with respect to Securities, however registered, shall be exercised
by the Fund or its designee. Custodian will make available to the Fund proxy
voting services upon the request of the fund in accordance with terms and
conditions to be mutually agreed upon by Custodian and the Fund.
6.
Custodian shall promptly advise the Fund upon Custodian’s actual receipt of
notification of the partial redemption, partial payment or other action
affecting less than all Securities of the relevant class. If Custodian or any
Depository holds any Securities in which the Fund has an interest as part of a
fungible mass, Custodian or Depository may select the Securities to participate
in such partial redemption, partial payment or other action in any
non-discriminatory manner that it customarily uses to make such
selection.
7.
Custodian shall not under any circumstances accept bearer interest coupons which
have been stripped from United States federal, state or local government or
agency securities unless explicitly agreed to by Custodian in
writing.
8. The
Fund shall be liable for all taxes, assessments, duties and other governmental
charges, including any interest or penalty with respect thereto (“Taxes”), with
respect to any cash or Securities held on behalf of the Fund or any transaction
related thereto. The Fund shall indemnify Custodian for any amount of Tax that
Custodian or any other withholding agent is required under applicable laws
(whether by assessment or otherwise) to pay on behalf of, or in respect of
income earned by or payments or distributions made to or for the account of the
Fund (including any payment of Tax required by reason of an earlier failure to
withhold). Custodian shall, or instruct any applicable other withholding agent
to, withhold the amount of any Tax which is required to be withheld under
applicable law upon collection of any dividend, interest or other distribution
made with respect to any Security and any proceeds or income from the sale, loan
or other transfer of any Security. In the event that Custodian is required under
applicable law to pay any Tax on behalf of the Fund, Custodian is hereby
authorized to withdraw cash from any cash account in the amount required to pay
such Tax and to use such cash, or to remit such cash to another withholding
agent, for the timely payment of such Tax in the manner required by applicable
law. If the aggregate amount of cash in all cash accounts is not sufficient to
pay such Tax, Custodian shall promptly notify the Fund of the additional amount
of cash required, and the Fund shall directly deposit such additional amount in
the appropriate cash account promptly after receipt of such notice, for use by
Custodian as specified herein.
9. (a)
For the purpose of settling Securities transactions, the Fund shall provide
Custodian with sufficient immediately available funds for all transactions by
such time and date as conditions in the relevant market dictate. Custodian shall
provide the Fund with immediately available funds each day which result from the
actual settlement of all sale transactions, based upon advices received by
Custodian from Depositories. Such funds shall be in U.S. dollars.
(b) To the extent that Custodian has agreed to provide pricing or other
information services in connection with this Agreement, Custodian is authorized
to utilize any vendor (including brokers and dealers in Securities) reasonably
believed by Custodian to be reliable to provide such information. The Fund
agrees that it will provide to the Custodian on a monthly basis the balance of
all promissory notes held by Custodian. The Custodian shall have no duty to
verify or in any manner confirm the information provided by the Fund to
Custodian relating to the value or outstanding balance of any promissory note
held by Custodian. The Fund acknowledges that Custodian shall use the
information provided by the Fund to prepare the monthly statement information
provided to the Fund by the Custodian.
10. Until
such time as Custodian receives a certificate to the contrary with respect to a
particular Security, Custodian may release the identity of the Fund to an issuer
which requests such information pursuant to the Shareholder Communications Act
of 1985 for the specific purpose of direct communications between such issuer
and shareholder.
ARTICLE
IV
PURCHASE
AND SALE OF SECURITIES
CREDITS
TO ACCOUNT
1.
Promptly after each purchase or sale of Securities by the Fund, the Fund shall
deliver to Custodian Instructions, specifying all information Custodian may
reasonably request to settle such purchase or sale. Custodian shall account for
all purchases and sales of Securities on the actual settlement date unless
otherwise agreed by Custodian.
2. The
Fund understands that when Custodian is instructed to deliver Securities against
payment, delivery of such Securities and receipt of payment therefore may not be
completed simultaneously. Notwithstanding any provision in this Agreement to the
contrary, settlements, payments and delivery of Securities may be effected by
Custodian in accordance with the customary or established securities trading or
securities processing practices and procedures in the jurisdiction in which the
transaction occurs, including, without limitation, delivery to a purchaser or
dealer therefore (or agent) against receipt with the expectation of receiving
later payment for such Securities. The Fund assumes full responsibility for all
risks, including, without limitation, credit risks, involved in connection with
such deliveries of Securities.
3.
Custodian may, as a matter of bookkeeping convenience or by separate agreement
with the Fund, credit the Account with the proceeds form any sale, redemption or
other disposition of Securities or interest, dividends or other distributions
payable on Securities prior to its actual receipt of final payment therefore.
All such credits shall be conditional until Custodian’s actual receipt of final
payment and may be reversed by Custodian to the extent that final payment is not
received. Payment with respect to a transaction will not be considered final
until Custodian shall have received immediately available funds which under
local applicable law, rule and/or practice are irreversible and not subject to
any security interest, levy or other encumbrance, and which are specifically
applicable to such transaction.
ARTICLE
V
OVERDRAFTS
AND INDEBTEDNESS
1. Fund
will have sufficient immediately available funds each day in the Cash Account
(without regard to any Cash Account investments) to pay for the settlement of
all Financial Assets delivered to the Fund against payment by Fund and credited
to the Securities Account. If a debit to the Cash Account results (or will
result) in a debit balance, the Custodian may, in its discretion, (i) advance an
amount equal to the overdraft, (ii) refuse to settle in whole or in part the
transaction causing such debit balance, or (iii) if any such transaction is
posted to the Securities Account, reverse any such posting. If Custodian elects
to make such advance, the advance will be deemed a loan to the Fund, payable on
demand, bearing interest at the applicable rate charged by Custodian from time
to time, for such overdrafts, from the date of such advance to the date of
payment (both after as well as before judgment) and otherwise on the terms on
which Custodian makes similar overdrafts available from time to
time.
2. If the
Custodian advances any amount to or for the benefit of the Fund, any assets held
in the Securities Account shall be security for any amounts so advanced in an
amount not to exceed the amount of such an advance. If, after Custodian provides
written notice to the Fund of any advance, the Fund fails to promptly repay the
advance, the Custodian shall be entitled to use the Fund’s available cash to
repay such amounts.
3. If the
Fund borrows money from any bank (including Custodian if the borrowing is
pursuant to a separate agreement) using securities held by Custodian hereunder
as collateral for such borrowings, the Fund shall deliver to Custodian
Instructions specifying with respect to each such borrowing: (a) the name
of the bank, (b) the amount of the borrowing, (c) the time and date, if known,
on which the loan is to be entered into, (d) the total amount payable to the
Fund on the borrowing date, (e) the Securities to be delivered as collateral for
such loan, including the name of the issuer, the title and number of shares or
the principal amount of any particular Securities, and (f) a statement
specifying whether the loan is for investment purposes or for temporary or
emergency purposes and that such loan is in conformance with the 40 Act and the
Fund’s prospectus. Custodian shall deliver on the borrowing date specified in a
Certificate the specified collateral against payment by the lending bank of the
total amount of the loan payable, provided that the same conforms to the total
amount payable as set forth in the Certificate. Custodian may, at the option of
the lending bank, keep such collateral in its possession, but such collateral
shall be subject to all rights therein given the lending bank by virtue of any
promissory note or loan agreement. Custodian shall deliver such Securities as
additional collateral as may be specified in a Certificate to collateralize
further any transaction described in this Section. The Fund shall cause all
Securities released from collateral status to be returned directly to Custodian,
and Custodian shall receive from time to time such return of collateral as may
be tendered to it. In the event the Fund fails to specify in Instructions, the
name of the issuer, the title and number of shares or the principal amount of
any particular Securities to be delivered as collateral by Custodian, Custodian
shall not be under any obligation to deliver any Securities.
ARTICLE
VI
SALE
AND REDEMPTION OF SHARES
1.
Whenever the Fund shall sell any shares issued by the Fund (“Shares”) it shall
deliver to Custodian a Certificate or Instructions specifying the amount of
money and/or Securities to be received by Custodian for the sale of such Shares
and specifically allocated to an Account.
2. Upon
receipt of such money, Custodian shall credit such money to an Account as
specified by the Fund.
3. Except
as provided hereinafter, whenever the Fund desires Custodian to make payment out
of the money held by Custodian hereunder in connection with a redemption of any
Shares, it shall furnish to Custodian a Certificate of Instructions specifying
the total amount to be paid for such Shares. Custodian shall make payment of
such total amount to the transfer agent specified in such Certificate of
Instructions out of the money held in the Account specified by the
Fund.
ARTICLE
VII
PAYMENT
OF DIVIDENDS OR DISTRIBUTIONS
1.
Whenever the Fund shall determine to pay a dividend or distribution on Shares it
shall furnish to Custodian Instructions or a Certificate setting forth therein
the declaration of such dividend or distribution, the total amount payable, and
the payment date.
2. Upon
the payment date specified in such Instructions or Certificate, Custodian shall
pay out of the money held, the total amount payable to the dividend agent of the
Fund specified therein.
ARTICLE
VIII
CONCERNING
THE CUSTODIAN
1. (a)
Except as otherwise expressly provided herein, Custodian shall not be liable for
any costs, expenses, damages, liabilities or claims, including attorneys’ and
accountants’ fees (collectively, “Losses”), incurred by or asserted against the
Fund, except those Losses arising out of Custodian’s own negligence or willful
misconduct. Custodian shall have no liability whatsoever for the action or
inaction of any Depositories except in each such case to the extent such action
or inaction is a direct result of Custodian’s failure to fulfill its duties
hereunder. In no event shall Custodian be liable to the Fund or any third party
for special, indirect or consequential damages, or lost profits or loss of
business, arising in connection with this Agreement, nor shall Custodian be
liable: (i) for acting in accordance with any Certificate or Instructions
actually received by Custodian and reasonably believed by Custodian to be given
by an Authorized Person; (ii) for acting in accordance with Instructions without
reviewing the same; (iii) for conclusively presuming that all Instructions are
given only by person(s) duly authorized; (iv) for conclusively presuming that
all disbursements of cash directed by the Fund, whether by a Certificate or an
Instruction, are in accordance with Section 2(h) of Article II hereof; (v) for
any Losses due to forces beyond the control of Custodian, including without
limitation strikes, work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear or natural catastrophes or acts of God, or interruptions,
loss or malfunctions or utilities, communications or computer (software and
hardware) services; or (vi) for any Losses arising from the applicability of any
law or regulation now or hereafter in effect.
(b) Custodian may enter into subcontracts, agreements and understandings
with other parties whenever and on such terms and conditions as it deems
necessary or appropriate to perform its services hereunder. No such subcontract,
agreement or understanding shall discharge Custodian from its obligations
hereunder.
(c) The Fund agrees to indemnify Custodian and hold Custodian harmless
from and against any and all Losses sustained or incurred by or asserted against
Custodian by reason of any action or inaction, or arising out of Custodian’s
performance hereunder, including reasonable fees and expenses of counsel
incurred by Custodian, provided however, that the Fund shall not indemnify
Custodian for those Losses arising out of Custodian’s own negligence or willful
misconduct. This indemnity shall be a continuing obligation of the Fund, its
successors and assigns, notwithstanding the termination of this
Agreement.
2.
Without limiting the generality of the foregoing, Custodian shall be under no
obligation to inquire into, and shall not be liable for:
(a) Any Losses incurred by the Fund r any other person as a result
of the receipt or acceptance of fraudulent, forged or invalid Securities which
are otherwise not freely transferable without encumbrance in any relevant
market;
(b) The validity of the issue of any Securities purchased, sold, or
written by or for the Fund, the legality of the purchase, sale or writing
thereof, or the propriety of the amount paid or received therefore;
(c) The legality of the sale or redemption of any Shares, or the
propriety of the amount received of paid therefore;
(d) The legality of the declaration or payment of any dividend or
distribution by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities, nor shall Custodian
be under any duty or obligation to see to it that any cash or collateral
delivered to it by a broker, dealer or financial institution or held by it at
any time as a result of such loan or portfolio Securities is adequate security
for the Fund against any loss it might sustain as a result of Such
loan, which duty or obligation shall be the sole responsibility of the Fund. In
addition, Custodian shall be under no obligation or duty to see that any broker,
dealer or financial institution to which portfolio Securities of the Fund are
lent makes payment to it of any dividends or interest which are payable to or
for the account of the Fund during the period of such loan or at the termination
of such loan, provided, however that Custodian shall promptly notify the Fund in
the event that such dividends or interest are not paid and received when
due.
3.
Custodian will be entitled to rely on, and may act upon the advice of
professional advisers in relation to matters of law, regulation or market
practice (which may be the professional advisers to the Fund) and will not be
liable to the Fund for any action taken or omitted pursuant to such advice
provided that the Custodian exercised reasonable care in the selection of such
professional advisers and acts reasonably in reliance on such advice.
Notwithstanding the foregoing, such reliance shall not effect the Custodian’s
liability with respect to its responsibilities under the terms of this Agreement
and the 1940 Act.
4.
Custodian shall be under no obligation to take any action to collect any amount
payable on Securities in default, or is payment is refused after due demand and
presentment.
5.
Custodian shall have no duty or responsibility to inquire into, make
recommendations, supervise, or determine the suitability on any transaction
affecting any Account.
6. The
Fund shall pay to Custodian the fees and charges as may be specifically agreed
upon from time to time and such other fees and charges at Custodian’s standard
rates for such services as may be applicable. The Fund shall reimburse Custodian
for all costs associated with the conversion of the Fund’s Securities hereunder
and the transfer of Securities and records kept in connection with this
Agreement. The Fund shall also reimburse Custodian for out-of-pocket expenses
which are a normal incident of the services provided hereunder.
7.
Custodian has the right to debit any cash account for any amount payable by the
Fund in connection with any and all obligations of the Fund to
Custodian.
8. If the
Fund elects to transmit Instructions through an on-line communications system
offered by Custodian, the Fund’s use thereof shall be subject to any terms and
conditions that may be imposed by Custodian. If Custodian receives Instructions
which appear on their face to have been transmitted by an Authorized Person via
(i) computer facsimile, email, the Internet or other insecure electronic method,
or (ii) secure electronic transmission containing applicable authorization cods,
passwords and/or authentication keys, the Fund understands and agrees that
Custodian cannot determine the identity of the actual sender of such
Instructions and that Custodian shall conclusively presume that such
Instructions have been sent by an Authorized Person, and the Fund shall be
responsible for ensuring that only Authorized Persons transmit such Instructions
to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit
Instructions through an on-line communications service owned or operated by a
third party, the Fund agrees that Custodian shall not be responsible for the
reliability or availability of such service.
9. The
Custodian shall create and maintain all records relating to its activities and
obligations under this Agreement in such manner as will meet the obligations of
the Fund under the 1940 Act, with particular attention to Section 31 thereof and
Rules 31a-1 and 31a-2 thereunder. To the extent that the Custodian is able to do
so, the Custodian shall provide assistance to the Fund (at the Fund’s reasonable
request) providing sub-certifications regarding certain of its services
performed hereunder to the Fund in connection with the Fund’s Xxxxxxxx-Xxxxx Act
of 2002 certification requirements. The books and records pertaining to the Fund
which are in possession of Custodian shall be the property of the Fund. Such
books and records shall be prepared and maintained as required by the 1940 Act
and the rules thereunder. The Fund, or its authorized representatives, shall
have access to such books and records maintained by Custodian hereunder upon
reasonable prior notice to Custodian during Custodian’s normal business
hours.
10. It is
understood that Custodian is authorized to supply any Information regarding the
Accounts which is required by any law, regulation or rule now or hereafter in
effect. The Custodian shall provide the Fund with any report obtained or
required to be obtained by the Custodian on the system of internal accounting
control of a Depository.
11.
Custodian shall have no duties or responsibilities whatsoever except such duties
and responsibilities as are specifically set forth in this Agreement, and no
covenant or obligation shall be implied against Custodian in connection with
this Agreement.
ARTICLE
IX
TERMINATION
1. Either
of the parties 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 giving such notice. In the event
such notice is given by the Fund, it shall be accompanied by a copy of a
resolution of the board of the Fund, certified by the Secretary or any Assistant
Secretary, electing to terminate this Agreement and designating a successor
custodian or custodians, each of which shall be a bank or trust company having
not less than $50,000,000 aggregate capital, surplus and undivided profits (or
such amount as may be required by the 1940 Act). In the event such notice is
given by Custodian, the Fund shall, on or before the termination date, deliver
to Custodian a copy of a resolution of the board of the Fund, certified by the
Secretary or any Assistant Secretary, designating a successor custodian or
custodians. In the absence of such designation by the Fund, Custodian may
designate a successor custodian, which shall be a bank or trust company having
not less than $50,000,000 aggregate capital, surplus and undivided profits (or
such amount as may be required by the 1940 Act). 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 deliver directly to
the successor custodian all Securities and money then owned by the Fund and held
by it as Custodian, after deducting all fees, expenses and other amounts for the
payment or reimbursement of which it shall be entitled.
2. If a
successor custodian is not designated by the Fund or Custodian in accordance
with the preceding Section, the Fund shall upon the date specified in the notice
of termination of this Agreement and upon delivery by Custodian of all
Securities (other than Securities which cannot be delivered to the Fund) and
money then owned by the Fund be deemed o be its own custodian and Custodian
shall thereby be relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities which cannot be
delivered to the Fund to hold such Securities hereunder in accordance with this
Agreement.
ARTICLE
X
MISCELLANEOUS
1. The
Fund agrees to furnish to Custodian a new Certificate of Authorized Persons in
the event of any change in the then present Authorized Persons. Until such new
Certificate is received, Custodian shall be fully protected in acting upon
Certificates of Instructions of such present Authorized Persons.
2. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to Custodian, shall be sufficiently addressed to Custodian and
received by it at its offices at 0000 XxXxxxxx Xxxxxx, Xxxxx X-0, Xxxxxxx,
Xxxxx, 00000, or at such other place as Custodian may from time to time
designate in writing.
3. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to the Fund shall be sufficiently given if addressed to the Fund and
received by it at its offices at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx XX 00000,
or at such other place as the Fund may from time to time designate in
writing.
4. Each
and every right granted to either party hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or in
equity, shall be cumulative and may be exercised from time to time. No failure
on the part of either party to exercise, and no delay in exercising, any right
will operate as a waiver thereof, nor will any single or partial exercise by
either party of any right preclude any other or future exercise thereof or the
exercise of any other right.
5. In
case any provision in any obligation under this Agreement shall be invalid,
illegal or unenforceable in any exclusive jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties. This Agreement shall extend to and
shall be binding upon the parties hereto and their respective successors and
assigns; provided, however, that this Agreement shall not be assignable by
either party without the written consent of the other.
6. This
Agreement shall be construed in accordance with the substantive laws of the
State of Texas, without regard to conflicts of laws principles thereof. In the
event of a conflict with applicable laws of the State of Texas, or any provision
herein, and the 1940 Act, the 1940 Act shall control. The Fund and Custodian
hereby consent to the jurisdiction of a state or federal court situated in
Houston, Texas in connection with any dispute arising hereunder. The Fund hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and claim that such proceeding brought in
such a court has been brought in an inconvenient forum. The Fund and Custodian
each hereby irrevocably waives any rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
7. The
Fund hereby acknowledges that Custodian is subject to federal laws, including
its Customer Identification Program (“CIP”) requirements under the USA PATRIOT
Act and its implementing regulations, pursuant to which Custodian must obtain,
verify and record information that allows Custodian to identify the Fund.
Accordingly, prior to opening an Account hereunder Custodian will ask the
Fund to provide certain information including, but not limited to, the Fund’s
name, physical address, tax identification number and other information that
will help Custodian to identify and verify the Fund’s identity such as
organizational documents, certificate of good standing, license to do business,
or other pertinent identifying information. The Fund agrees that Custodian
cannot open an Account hereunder unless and until Custodian verifies the Funds
identity in accordance with its CIP.
8. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
IN WITNESS WHEREOF, the Fund
and Custodian have caused this Agreement to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
BUSINESS
DEVELOPMENT CORPORATION OF AMERICA
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By:
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Title:
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AMEGY
BANK NATIONAL ASSOCIATION
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By:
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Title:
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