EXHIBIT 10.44
CUSTODY AGREEMENT
The First National Bank of Chicago (hereinafter "We",
"Us" or "Our") is requested to open a custody account (the
"Custody Account") for and in the name of General Manufactured
Housing, Inc., (herein after "You" or "Your") and to hold therein
all monies, stocks, bonds, mortgages and other financial
instruments, both foreign and domestic ("Securities"), which We
will agree to accept as custodian and to deliver as You direct,
subject to the following terms and conditions:
We will hold the Securities in Our own vaults
separately from the securities of any other customer except that
We may hold the Securities adequately identified as belonging to
You in bulk with Securities of the same class of the same issue;
further, We may use available Federal Book Entry accounts with
the Federal Reserve Bank of Chicago, commercial paper book entry
or a Bank or Trust Company licensed by the United States or any
State thereof. We may hold the Securities on Your behalf in
accounts maintained by Us with any domestic or foreign depository
that provides handling, clearance or safekeeping services.
We will not provide supervision, recommendations or
advice to You relative to the investment, purchase, sale,
retention or other disposition of the Securities held under this
agreement.
1. Unless We receive contrary written instructions
from You, We are authorized to take the following actions with
regard to the collection and disposition of proceeds of the
Securities:
(a) We will collect all income or other property
payable in connection with the Securities as well as any
principal due upon maturity, redemption (of which We have
received notice pursuant to Section 6 of this agreement) or sale
thereof, in accordance with our usual and customary business
practice, but We shall bear no responsibility for our failure to
make such collections beyond the exercise of due care.
(b) We will deposit any monies so collected to Your
credit, in such accounts with Us as You may designate, or remit
such monies to You as You may direct.
(c) We will debit Your account for the cost of
purchasing Securities for the Custody Account as instructed by
You.
(d) We will present for payment maturing Securities,
interest coupons and Securities called for redemption.
(e) If Securities, which We hold on Your behalf at
depositories or off-site locations, are called for partial
redemption by the issuer, We, in our sole discretion, will allot
the called portion to the respective holders in any manner deemed
to be fair and equitable in our judgment.
(f) To the extent possible, We will convert monies
received with respect to securities of foreign issue into United
States dollars. In effecting such conversion, We may use any
method or agency available to Us including the facilities of our
own divisions or affiliates. All risk and expense of such
conversion shall be borne by You including, without limitation,
losses arising from fluctuations in exchange rates.
(g) We will exchange temporary for definitive
certificates or effect mandatory exchanges of certificates.
(h) We will execute, in Your name and on Your behalf,
such certificates as may be required to obtain payment with
respect to, or to effect the sale, transfer or other disposition
of the Securities.
2. Securities issued in registered form will be held
in the name of our nominee(s) or the nominee(s) of any agent,
subcustodian or other entity that We may employ for clearance or
safekeeping. Securities registered in the name of any nominee
will not be delivered, except to a broker for immediate sale,
until transferred out of the name of such nominee. All taxes and
other expenses incidental to any transfer to or from the name of
any nominee shall be borne by You.
3.(a) We are authorized to accept and rely on all written
instructions given by You to make sales or purchases or to otherwise deal
with the Securities. Where multiple parties sign the Agreement, any one of
You may give instructions. We may also accept and rely on instructions
transmitted by You or Your authorized agent whether given orally,
by telephone, cable or telex, facsimile transmission or other
electronic means which We reasonably believe to be genuine. We
may electronically record any telephone calls. Written
confirmation of oral instructions provided by You shall in no way
affect any action We take in reliance upon the oral instructions.
(b) For the services described in this paragraph, You
will need to execute additional documents attached hereto. If
You so authorize, We will accept instructions for free delivery
of Securities and capital changes only from individuals who have
been authorized by You on the Disbursement Authorization form
related hereto (Exhibit A). If You intend to wire funds from the
Custody Account, You will complete and deliver to Us prior to any
such wire transfer the appropriate section of the Disbursement
Authorization form confirming Your adherence to the Custodial
Funds Transfer Agreement (Exhibit B). If You elect to instruct
Us electronically, We will furnish You with software for such
purpose, and You will execute an Electronic Trade Instruction
(Exhibit C) prior to using such software. If You wish to use our
automated service for corporate action notices, You will complete
the Corporate Actions Express Service Agreement (Exhibit D) prior
to using such service. We shall be entitled to rely upon the
instructions received by Us from You via the software and may
assume that all instructions were transmitted by You or on Your
behalf, regardless of by whom actually transmitted. If You elect
to use our daily sweep service, You will complete and deliver to
Us prior to using such service the Sweep Service Authorization
(Exhibit E).
(c) Notwithstanding any provision hereunder to the
contrary, We shall rely conclusively on Eligible and Ineligible
Trade Reports received through the Depository Trust Company's
Institutional Delivery (DTC-ID) system in lieu of Your written
instructions for security transactions utilizing said system.
(d) In the event the DTC-ID system for any reason does
not furnish Us with an Eligible and/or Ineligible Trade Report,
You agree to provide Us with written instructions for the
trade(s) which said Report would have otherwise contained.
(e) The preceding provisions shall not preclude Your
use of written instructions for securities transactions and/or
other matters when You deem it necessary or advisable, and We may
rely conclusively on such instructions.
(f) You assume responsibility for any loss, claim or
expense We incur in following Your instructions except in the
case of our failure to act in good faith or in accordance with
the reasonable commercial standards of the banking business. We
shall not be liable for delays or failure to carry out
instructions due to circumstances beyond Our control. All claims
against Us for failure to properly follow Your instructions must
be brought within 45 days from the date on which We execute Your
instructions. If it is determined that compensation is due you,
it will be paid at the Federal Funds rate.
4(a) We shall collect both income and principal in
accordance with our usual and customary business practices. We
assume no responsibility regarding such collection beyond the
exercise of due care. Losses due to any other cause will be
borne by You. Such losses include, without limitation, those
arising from:
(i) insolvency of any broker, whether
designated by You or employed by Us,
which occurs after delivery of a
security by Us to the broker but
before We receive payment from the
broker;
(ii) insolvency of the issuer of the
Securities;
(iii) default by the issuer of the
Securities; and
(iv) any act or omission of any broker or
similar agent which You may designate
or We may employ to purchase, sell or
perform any act in respect to any
security.
(b) In the event that We credit Your account in
anticipation of Our collection of monies which We are then unable
to collect, You agree to promptly return any such monies to Us in
immediately available funds.
5. All proxies and material pertaining thereto We
receive in connection with Securities and other property held in
the Custody Account, together with all official reports referring
to indentures securing such Securities, will be forwarded in a
timely fashion to You. No other financial statements or reports
will be forwarded.
6. Except as otherwise provided, We will notify You
of any call for redemption, tender offer, subscription rights or
any other discretionary rights with respect to the Securities of
which We receive timely notice from the issuer of the Securities or
as to which correct and timely notice is published in publications
which We routinely use for this purpose, or as to which We receive
timely notice from You.
7. Notwithstanding any provision hereunder to the
contrary, with respect to Securities which possess so-called put
options or similar characteristics which grant You the option to
redeem such Securities prior to their maturity date ("Put Option
Securities"), including, but not limited to, so-called put bonds,
We shall not have any liability with respect to the exercise or
non-exercise of any such Put Option, except that:
(a) With respect to Put Options which are exercisable
semiannually or less frequently than semiannually, and where such
Put Option Security is actually delivered to Us not less than 15
business days prior to the Put Option exercise date, We will use
our best efforts to notify You of such put option where correct and
timely notification is published in the publications or services
("Notification Sources") We routinely use for this purpose, or as
to which We receive timely notice from You;
(b) Once notified, You must direct the exercise or
non-exercise of such Put Option by written instrument delivered to
Us not less than 5 business days prior to the Put Option exercise
date;
(c) For purposes of this section 7 (a) "business day"
is a day on which We are open for business under the laws of the
State of Illinois; the Notification Sources include, but are not
limited to, X. X. Xxxxx, The Wall Street Journal and/or Depository
Trust Company of New York, and We reserve the right to utilize
other Notification Sources or discontinue any of the aforementioned
Notification Sources at any time and without notice; and We will
not notify You of Put Options exercisable more frequently than
semiannually.
8. We shall have a lien upon the Securities held under
this Agreement and upon any deposit account of Yours for
compensation, expenses, and commitments We make pursuant to Your
instructions, or any other liabilities of Yours to Us, including,
without limitation, Your obligation to indemnify Us under
Section 11 of this Agreement.
You agree not to execute any pledge of any Securities
until We have been notified of such pledge agreement.
9. For any Securities in Your account, the
Shareholders Communications Act of 1985 and subsequent amendments
to the act authorize us to release to issuer of Securities and to
other security holders of an issue Your name, address and
Securities position if Your Custody Account was opened after
December 28, 1985, unless You state Your objection to Us in writing
(Exhibit F).
10. You hereby acknowledge that the act of placing a
buy order and a sale order for the same securities which are to
settle on the same date in instances where You do not have in the
Custody Account sufficient funds independent of the sale of such
securities to satisfy fifty percent (50%) or more of the purchase
price (or such other percentage as may be required by applicable
law and regulation) constitutes the practice commonly known as
"free riding" and is prohibited under both Regulation T and
Regulation U of the Board of Governors of the Federal Reserve
System (12 C.F.R. Parts 220 and 221).
You hereby represent and warrant that You have not
engaged in free-riding or any similar practice (each, a "Prohibited
Practice") and expressly agree to refrain from engaging in any such
Prohibited Practice during the term of this Agreement.
Notwithstanding anything to the contrary contained herein, We shall
be entitled to terminate this Agreement immediately upon the
occurrence of any breach of this Section 10.
11. You shall indemnify Us, Our officers and employees
and hold Us and them harmless for and from all claims, losses,
liabilities and expenses, including, without limitation, legal fees
and expenses arising from any claim of any party resulting from
actions We take in accordance with the provisions of this
Agreement.
12(a) We undertake to perform such duties and only such
duties as are specifically set forth in the Agreement, it being
expressly understood that there are no implied duties hereunder.
(b) IN NO EVENT SHALL WE BE LIABLE, DIRECTLY OR
INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES ARISING OUT OF THE
SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM
OUR FAILURE TO ACT IN ACCORDANCE WITH THE REASONABLE COMMERCIAL
STANDARDS OF THE BANKING BUSINESS, OR (ii) SPECIAL OR CONSEQUENTIAL
DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
13. You will compensate Us for services provided
hereunder in accordance with the schedule of fees which has been
agreed upon. We may change the fees from time to time, such change
to be effective thirty (30) days after We send written notice to
You.
14. This Agreement may be terminated by either party
effective thirty (30) days after receipt of written notice.
15(a) Any delay or failure of either party hereto at any
time to require performance by the other party of any provision of
this Agreement shall in no way effect the right of such party to
require future performance of that or any other provision of this
Agreement and shall not be construed as a waiver of any subsequent
breach of any provision, a waiver of this provision itself or a
waiver of any other right under this Agreement.
(b) Any notice herein required or permitted to be given
may be given, except as otherwise provided by this Agreement, in
writing by depositing same in the United States mail, postage
prepaid, addressed to You at the address set forth beneath Your
signature below and to Us as follows:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Account Administration
Xxxxx# 0000, 0 Xxxxxxxx, Xxxxx 13
or such other address as the party to be so addressed may
designate in writing.
(c) If any of the provisions of this Agreement are
invalid under any applicable statute or rule of law, they are, to
that extent, to be deemed omitted.
(d) This Agreement (including the exhibits attached
hereto) and supplements hereto, if any, constitute the entire
agreement between You and Us relating to the subject matter hereof,
and supersede all proposals oral or written and all other
communications oral or written between the parties relating to the
subject matter of this Agreement, and except as hereafter provided,
may not be modified, except in writing, signed by the party against
whom the modification is to be enforced.
(e) We may modify the provisions of the Agreement at
any time by written notice delivered to You at least thirty (30)
days prior to the effective date of such modification.
(f) This Agreement shall be governed by the internal
laws of the State of Illinois.
IN WITNESS WHEREOF, You and We have signed this Agreement
as of this _____ day of December, 1995.
GENERAL MANUFACTURED HOUSING, INC.
(CUSTOMER NAME)
By: /s/ Xxxx X. Xxxxx
Title: President
Address: 0000 Xxxxxxxxxx Xxxxxxxxx
Taxpayer I.D. Xx. Xxxxxxxx, Xxxxxxx 00000
THE FIRST NATIONAL BANK OF CHICAGO
By:____________________________________
Title:_________________________________
