Exhibit 2.j.2
CUSTODIAN AGREEMENT
THIS CUSTODIAN AGREEMENT (the "Agreement") dated as of August 27, 1997,
is entered into by and between AMERICAN CAPITAL STRATEGIES, LTD., a Delaware
corporation ("ACS") and XXXXX BANK N.A., a national banking association
("Xxxxx").
PRELIMINARY STATEMENT
WHEREAS, ACS has requested that Xxxxx act as custodian (the "Custodian")
for the purpose of receiving and holding certain property from time to time.
WHEREAS, Xxxxx is willing to act in such capacity as Custodian.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 Definitions. As used herein, the following terms shall have
the meanings assigned thereto below:
"Authorized Employee" means any ACS employee listed on Schedule I hereto
and any other ACS employee hereafter authorized in writing by an existing
Authorized Employee to act as an Authorized Employee of ACS hereunder; provided,
however, that any Authorized Employee may send the Custodian a notice informing
them of any other Authorized Employee who ceases to be an Authorized Employee.
"Property" means securities, notes, loan documents, loan files and other
property reasonably acceptable to Xxxxx.
"Termination Date" means the date upon which this Agreement is terminated
pursuant to Section 4.05 hereto.
.2.
ARTICLE 2
CUSTODIAN
SECTION 2.01 Designation and Appointment of Xxxxx as Custodian. Xxxxx is
hereby designated as, and hereby agrees to perform the duties and obligations
of, the Custodian under and as set forth in this Agreement. Xxxxx shall serve as
Custodian from the date hereof until the Termination Date.
SECTION 2.02 Duties of Custodian. At all times that Xxxxx shall be the
Custodian, it shall duly discharge its duties of receiving and holding the
Property in accordance with this Agreement. As to any matters not expressly
provided for by this Agreement, the Custodian shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the written instructions of ACS (executed by an Authorized
Employee); provided, however, that the Custodian shall not be required to take
any action which is contrary to this Agreement or applicable law, or which is
not reasonably incidental to its duties and responsibilities under this
Agreement or is of a type unrelated to its business.
SECTION 2.03 Property. (a) From time to time ACS may deliver Property to
the Custodian. At all times, ACS shall remain the owner of the Property. All
such Property shall be held by the Custodian pursuant to the terms of this
Agreement. Such Property shall be placed by the Custodian for safekeeping in a
fireproof vault (or similar safekeeping device) located on the Custodian's
premises and shall be held in a manner which allows such Property to be released
within two business days following the Custodian's receipt of notice pursuant to
the terms set forth in Section 2.04 below.
(b) Property held by the Custodian shall at all times be individually
segregated from the securities and other property of all persons other than ACS
and marked in an appropriate manner (including by attaching tags or labels to
the Property or by placing the Property in labeled containers that contain only
ACS Property) to identify clearly ACS' ownership, both upon physical inspection
thereof and upon examination of the books and records of Custodian.
.3.
SECTION 2.04 Removal of Property. (a) ACS shall have the unlimited right,
upon written notice (by facsimile or otherwise), to remove all or any portion of
the Property from the Custodian.
(b) Other than as described in the this Section 2.04 and as otherwise
required by law, the Custodian shall have no authority to release any Property.
SECTION 2.05 No Liens or Encumbrances. The Custodian hereby agrees not to
assert any statutory or possessory liens or encumbrances of any kind with
respect to the Property, and hereby waives all such liens and encumbrances. The
Custodian shall not assign, hypothecate, pledge or otherwise dispose of any
Property, except pursuant to written instructions of ACS and only for the
account of ACS.
SECTION 2.06 Maintenance of Records. The Custodian shall implement and
maintain administrative and operating procedures pursuant to which it shall keep
and maintain all records and information necessary to permit the regular
identification of all Property held or released by it.
SECTION 2.07 Reports; Visitation Rights; Other Information. (a) The
Custodian shall furnish to ACS a monthly report (a "Report"), setting forth, (i)
the Property held by the Custodian as of the Report's date (the "Report
Effective Date") and as of the Report Effective Date for the immediately
preceding Report, (ii) the Property delivered to the Custodian since the Report
Effective Date for the immediately preceding Report, and (iii) the Property
released by the Custodian since the Report Effective Date for the immediately
preceding Report. For purposes of clauses (ii) and (iii) above with respect to
the first Report delivered by the Custodian hereunder, "the Report Effective
Date for the immediately preceding Report" shall be deemed to mean the date on
which the Property is initially delivered to the Custodian hereunder.
(b) From time to time, upon reasonable prior notification, during normal
business hours, any Authorized Employee shall have the right (i) to visit the
Custodian's office where the Property is maintained, (ii) to examine the
facilities for the storage and safekeeping of the
.4.
Property, (iii) to review the procedures with which such Property is stored and
catalogued, (iv) to examine and make copies of and abstracts from any documents
relating to the Property, and (v) to discuss matters relating to the Property
and the Custodian's performance hereunder with any officer of the Custodian
having knowledge of such matters.
(c) The Custodian shall provide to ACS such other information concerning
the Property as it may from time to time reasonably request.
SECTION 2.08 Custodian's Liability. The Custodian shall have no liability
whatsoever by reason of any error of judgment for any act done or step taken or
omitted by it, or for any mistake of fact or law for anything which it may do or
refrain from doing in connection herewith, unless caused by or arising out of
its own negligence or willful misconduct.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01 Representations and Warranties of the Custodian. The
Custodian hereby represents and warrants to ACS as follows:
(a) The Custodian (i) is a national banking association duly
incorporated, validly existing and in good standing under the laws of the United
States of America; (ii) shall at all times during the effectiveness of this
Agreement maintain an aggregate capital, surplus, and undivided profits of not
less than $500,000; and (iii) has all required corporate power and authority to
enter into and perform its obligations under this Agreement.
(b) The execution, delivery and performance by the Custodian of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Custodian.
(c) The Custodian has, and has created, no liens against any Property.
(d) There are no actions or proceedings pending or, to the actual
knowledge of any officers of the Custodian, threatened against it before any
court or other
.5.
governmental authority (A) which question the validity or enforceability of this
Agreement; or (B) which, if determined adversely to the position of the
Custodian, would materially and adversely affect the ability of the Custodian to
perform its obligations as Custodian under this Agreement.
(e) This Agreement has been duly executed and delivered by the Custodian.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01 Fees and Expenses of the Custodian. ACS agrees to pay the
Custodian an annual fee of $10,000 (the "Custodian Fee") for the services
rendered hereunder. Such fee shall be in effect for one year from the date
hereof. The fee for periods thereafter shall be subject to negotiation by the
parties.
SECTION 4.02 Amendments, Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by each party hereto,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 4.03 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telex communication and
communication by facsimile copy) and mailed, telexed, transmitted or delivered,
as to each party hereto, at its address set forth under its name on the
signature pages hereof or at such other address as shall be designated by such
party in a written notice to the other parties hereto. All such notices and
communications shall be effective upon receipt, or in the case of delivery by
facsimile copy, when verbal communication of receipt is obtained.
SECTION 4.04 Binding Effect; Assignability; Term. This Agreement shall be
binding upon and inure to the benefit of ACS and the Custodian and their
respective successors and permitted assigns. ACS may assign at any time its
rights and obligations hereunder and interests herein without the consent of the
Custodian. The Custodian may not assign any of its rights, duties and
.6.
obligations hereunder or any interest herein without ACS's prior written
consent. This Agreement shall create and constitute the continuing obligations
of the parties hereto in accordance with its terms, and shall remain in full
force and effect until the Termination Date, provided, however, that the
provisions of Section 2.08 shall be continuing and shall survive the termination
of this Agreement.
SECTION 4.05 Resignation and Removal. The Custodian may resign at any
time by giving written notice thereof to ACS not less than 120 days prior to the
effective date of such resignation. The Custodian may be removed by ACS at any
time, with or without cause, by giving written notice thereof to the Custodian
not less than ten (10) days prior to the effective date of such removal. Upon
any such resignation or removal, ACS shall have the right to appoint a successor
Custodian. Any such successor shall, upon its acceptance thereof, succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Custodian, and the retiring Custodian shall be discharged from its duties and
obligations as Custodian under this Agreement.
SECTION 4.06 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws and decisions of the State of Maryland.
SECTION 4.07 Execution in Counterparts; Severability. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
.7.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
above written.
AMERICAN CAPITAL STRATEGIES, LTD.
By ___________________________________
Name:
Title:
Notice Address:
0 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telecopier: (000) 000-0000
XXXXX BANK N.A.,
as Custodian
By ___________________________________
Name:
Title:
Notice Address:
000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000
Attn:
Telecopier: (202) -
Schedule I
AUTHORIZED EMPLOYEES
Xxxxx Xxxxxx
Xxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxxx
