EXHIBIT (j)
CUSTODY AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of January,
2005, by and between TORTOISE NORTH AMERICAN ENERGY CORPORATION, a Maryland
corporation (the "Company") and U.S. BANK NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America with its principal place of business at Minneapolis, Minnesota (the
"Custodian").
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a closed-end management investment
company, and is authorized to issue shares of common stock;
WHEREAS, the Custodian is a bank having the qualifications prescribed in
Section 26(a)(1) of the 1940 Act; and
WHEREAS, the Company desires to retain the Custodian to act as custodian
of the cash and securities of the Company.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings set forth below, unless the context otherwise requires:
1.1 "Authorized Person" means any Officer or other person duly
authorized by resolution of the Board of Directors to give Oral
Instructions and Written Instructions on behalf of the Company and
named in Exhibit A hereto or in such resolutions of the Board of
Directors, certified by an Officer, as may be received by the
Custodian from time to time.
1.2 "Board of Directors" shall mean the directors from time to time
serving under the Company's articles of incorporation, as amended
from time to time.
1.3 "Book-Entry System" shall mean a federal book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX 306, in
Subpart B of 31 CFR Part 350, or in such book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "Business Day" shall mean any day recognized as a settlement day by
The New York Stock Exchange, Inc., and any other day for which the
Company computes the net asset value of Shares.
1.5 "Company Custody Account" shall mean any of the accounts in the name
of the Company, which is provided for in Section 3.2 below.
1.6 "IRS" shall mean the Internal Revenue Service.
1.7 "NASD" shall mean The National Association of Securities Dealers,
Inc.
1.8 "Officer" shall mean the Chairman, President, any Vice President,
any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, or any Assistant Treasurer of the Company.
1.9 "Oral Instructions" shall mean instructions orally transmitted to
and accepted by the Custodian because such instructions are: (i)
reasonably believed by the Custodian to have been given by any two
Authorized Persons, (ii) recorded and kept among the records of the
Custodian made in the ordinary course of business, and (iii) orally
confirmed by the Custodian. The Company shall cause all Oral
Instructions to be confirmed by Written Instructions prior to the
end of the next Business Day. If such Written Instructions
confirming Oral Instructions are not received by the Custodian prior
to a transaction, it shall in no way affect the validity of the
transaction or the authorization thereof by the Company. If Oral
Instructions vary from the Written Instructions that purport to
confirm them, the Custodian shall notify the Company of such
variance but such Oral Instructions will govern unless the Custodian
has not yet acted.
1.10 "Proper Instructions" shall mean Oral Instructions or Written
Instructions.
1.11 "SEC" shall mean the Securities and Exchange Commission.
1.12 "Securities" shall include, without limitation, common and preferred
stocks, bonds, call options, put options, debentures, notes, bank
certificates of deposit, bankers' acceptances, mortgage-backed
securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to
receive, purchase or subscribe for the same, or evidencing or
representing any other rights or interests therein, or any similar
property or assets that the Custodian has the facilities to clear
and service.
1.13 "Securities Depository" shall mean The Depository Trust Company and
any other clearing agency registered with the SEC under Section 17A
of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
which acts as a system for the central handling of Securities where
all Securities of any particular class or series of an issuer
deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical
delivery of the Securities.
1.14 "Shares" shall mean the shares of common stock issued by the
Company.
1.15 "Sub-Custodian" shall mean and include (i) any branch of a "U.S.
bank," as that term is defined in Rule 17f-5 under the 1940 Act, and
(ii) any "eligible foreign custodian," as that term is defined in
Rule 17f-5 under the 1940 Act, having a contract with the Custodian
which the Custodian has determined will provide reasonable care of
assets of the Company based on the standards specified in Section
3.3 below. Such contract shall be in writing and shall include
provisions that provide: (i) for indemnification or insurance
arrangements (or any combination of the foregoing) such that the
Company will be adequately protected against the risk of loss of
assets held in accordance with such contract; (ii) that the
Company's assets will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of the Sub-Custodian or
its creditors except a claim of payment for their safe custody or
administration, in the case of cash deposits, liens or rights in
favor of creditors of the Sub-Custodian arising under bankruptcy,
insolvency, or similar laws; (iii) that beneficial ownership for the
Company's assets will be freely transferable without the payment of
money or value other than for safe custody or administration; (iv)
that adequate records will be maintained identifying the assets as
belonging to the Company or as being held by a third party for the
benefit of the Company; (v) that the Company's independent public
accountants will be given access to those records or confirmation of
the contents of those records; and (vi) that the Company will
receive periodic reports with respect to the safekeeping of the
Company's assets, including, but not limited to, notification of any
transfer to or from the Company's account or a third party account
containing assets held for the benefit of the Company. Such contract
may contain, in lieu of any or all of the provisions specified in
(i) - (vi) above, such other provisions that the Custodian
determines will provide, in their entirety, the same or a greater
level of care and protection for Company assets as the specified
provisions.
1.16 "Written Instructions" shall mean (i) written communications
actually received by the Custodian and signed by any two Authorized
Persons, (ii) communications by telex or any other such system from
one or more persons reasonably believed by the Custodian to be
Authorized Persons, or (iii) communications between
electro-mechanical or electronic devices provided that the use of
such devices and the procedures for the use thereof shall have been
approved by resolutions of the Board of Directors, a copy of which,
certified by an Officer, shall have been delivered to the Custodian.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Company hereby appoints the Custodian as custodian
of all Securities and cash owned by or in the possession of the
Company at any time during the period of this Agreement, on the
terms and conditions set forth in this Agreement, and the Custodian
hereby accepts such appointment and agrees to perform the services
and duties set forth in this Agreement. The services and
duties of the Custodian shall be confined to those matters expressly
set forth herein, and no implied duties are assumed by or may be
asserted against the Custodian hereunder.
2.2 Documents to be Furnished. The following documents, including any
amendments thereto, will be provided contemporaneously with the
execution of the Agreement to the Custodian by the Company:
(a) A copy of the Company's articles of incorporation, certified by
the Secretary;
(b) A copy of the Company's bylaws, certified by the Secretary;
(c) A copy of the resolution of the Board of Directors of the
Company appointing the Custodian, certified by the Secretary;
(d) A copy of the current prospectus of the Company (the
"Prospectus"); and
(e) A certification of the Chairman or the President and the
Secretary of the Company setting forth the names and signatures
of the current Officers of the Company and other Authorized
Persons.
2.3 Notice of Appointment of Transfer Agent. The Company agrees to
notify the Custodian in writing of the appointment, termination or
change in appointment of any transfer agent of the Company.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of the Company (other than Securities
maintained in a Securities Depository or Book-Entry System) shall be
physically segregated from other Securities and non-cash property in
the possession of the Custodian (including the Securities and
non-cash property of the other series of the Company) and shall be
identified as subject to this Agreement.
3.2 Company Custody Accounts. The Custodian shall open and maintain in
its trust department a custody account in the name of the Company,
subject only to draft or order of the Custodian, in which the
Custodian shall enter and carry all Securities, cash and other
assets of the Company which are delivered to it.
3.3 Appointment of Agents.
(a) In its discretion, the Custodian may appoint one or more
Sub-Custodians to act as Securities Depositories or as
sub-custodians to hold Securities and cash of the Company and
to carry out such other provisions of this Agreement as it may
determine; provided, however, that the appointment of any such
agents and maintenance of any Securities and cash of the
Company shall be at the Custodian's expense and shall not
relieve the Custodian of any of its obligations or liabilities
under this Agreement. The Custodian shall be liable for the
actions of any Sub-Custodians appointed by it as if such
actions had been done by the Custodian.
(b) If, after the initial approval of Sub-Custodians by the Board
of Directors in connection with this Agreement, the Custodian
wishes to appoint other Sub-Custodians to hold property of the
Company, it will so notify the Company and provide it with
information reasonably necessary to determine any such new
Sub-Custodian's eligibility under Rule 17f-5 under the 1940
Act, including a copy of the proposed agreement with such
Sub-Custodian. At the meeting of the Board of Directors next
following receipt of such notice and information, the Company
shall give its written approval or disapproval of the proposed
action.
(c) The Agreement between the Custodian and each Sub-Custodian
acting hereunder shall contain the required provisions set
forth in Rule 17f-5(c)(2) under the 1940 Act.
(d) At the end of each calendar quarter, the Custodian shall
provide written reports notifying the Board of Directors of
the placement of the Securities and cash of the Company with a
particular Sub-Custodian and of any material changes in the
Company's arrangements. The Custodian shall promptly take such
steps as may be required to withdraw assets of the Company
from any Sub-Custodian that has ceased to meet the
requirements of Rule 17f-5 under the 1940 Act.
(e) With respect to its responsibilities under this Section 3.3,
the Custodian hereby warrants to the Company that it agrees to
exercise reasonable care, prudence and diligence such as a
person having responsibility for the safekeeping of property
of the Company. The Custodian further warrants that the
Company's assets will be subject to reasonable care if
maintained with a Sub-Custodian, after considering all factors
relevant to the safekeeping of such assets, including, without
limitation: (i) the Sub-Custodian's practices, procedures, and
internal controls for certificated securities (if applicable),
its method of keeping custodial records, and its security and
data protection practices; (ii) whether the Sub-Custodian has
the requisite financial strength to provide reasonable care
for Company assets; (iii) the Sub-Custodian's general
reputation and standing and, in the case of a Securities
Depository, the Securities Depository's operating history and
number of participants; and (iv) whether the Company will have
jurisdiction over and be able to enforce judgments against the
Sub-Custodian, such as by virtue of the existence of any
offices of the Sub-Custodian in the United States or the
Sub-Custodian's consent to service of process in the United
States.
(f) The Custodian shall establish a system to monitor the
appropriateness of maintaining the Company's assets with a
particular Sub-Custodian and the contract governing the
Company's arrangements with such Sub-Custodian.
3.4 Delivery of Assets to Custodian. The Company shall deliver, or cause
to be delivered, to the Custodian all of the Company's Securities,
cash and other investment assets, including (i) all payments of
income, payments of principal and capital distributions received by
the Company with respect to such Securities, cash or other assets
owned by the Company at any time during the period of this
Agreement, and (ii) all cash received by the Company for the
issuance of Shares. The Custodian shall not be responsible for such
Securities, cash or other assets until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Company in a Securities
Depository or in a Book-Entry System, subject to the following
provisions:
(a) The Custodian, on an on-going basis, shall deposit in a
Securities Depository or Book-Entry System all Securities
eligible for deposit therein and shall make use of such
Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance
hereunder, including, without limitation, in connection with
settlements of purchases and sales of Securities, loans of
Securities, and deliveries and returns of collateral
consisting of Securities.
(b) Securities of the Company kept in a Book-Entry System or
Securities Depository shall be kept in an account ("Depository
Account") of the Custodian in such Book-Entry System or
Securities Depository which includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for
customers.
(c) The records of the Custodian with respect to Securities of the
Company maintained in a Book-Entry System or Securities
Depository shall, by book-entry, identify such Securities as
belonging to the Company.
(d) If Securities purchased by the Company are to be held in a
Book-Entry System or Securities Depository, the Custodian
shall pay for such Securities upon (i) receipt of advice from
the Book-Entry System or Securities Depository that such
Securities have been transferred to the Depository Account,
and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account
of the Company. If Securities sold by the Company are held in
a Book-Entry System or Securities Depository, the Custodian
shall transfer such Securities upon (i) receipt of advice from
the Book-Entry System or Securities Depository that payment
for such Securities has been transferred to the Depository
Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account
of the Company.
(e) The Custodian shall provide the Company with copies of any
report (obtained by the Custodian from a Book-Entry System or
Securities
Depository in which Securities of the Company are kept) on the
internal accounting controls and procedures for safeguarding
Securities deposited in such Book-Entry System or Securities
Depository.
(f) Notwithstanding anything to the contrary in this Agreement,
the Custodian shall be liable to the Company for any loss or
damage to the Company resulting from (i) the use of a
Book-Entry System or Securities Depository by reason of any
negligence or willful misconduct on the part of the Custodian
or any Sub-Custodian, or (ii) failure of the Custodian or any
Sub-Custodian to enforce effectively such rights as it may
have against a Book-Entry System or Securities Depository. At
its election, the Company shall be subrogated to the rights of
the Custodian with respect to any claim against a Book-Entry
System or Securities Depository or any other person from any
loss or damage to the Company arising from the use of such
Book-Entry System or Securities Depository, if and to the
extent that the Company has not been made whole for any such
loss or damage.
(g) With respect to its responsibilities under this Section 3.5
and pursuant to Rule 17f-4 under the 1940 Act, the Custodian
hereby warrants to the Company that it agrees to (i) exercise
due care in accordance with reasonable commercial standards in
discharging its duty as a securities intermediary to obtain
and thereafter maintain such assets, (ii) provide, promptly
upon request by the Company, such reports as are available
concerning the Custodian's internal accounting controls and
financial strength, and (iii) require any Sub-Custodian to
exercise due care in accordance with reasonable commercial
standards in discharging its duty as a securities intermediary
to obtain and thereafter maintain assets corresponding to the
security entitlements of its entitlement holders.
3.6 Disbursement of Moneys from Company Custody Account. Upon receipt of
Proper Instructions, the Custodian shall disburse moneys from the
Company Custody Account but only in the following cases:
(a) For the purchase of Securities for the Company but only in
accordance with Section 4.1 of this Agreement and only (i) in
the case of Securities (other than options on Securities,
futures contracts, and options on futures contracts), against
the delivery to the Custodian (or any Sub-Custodian) of such
Securities registered as provided in Section 3.9 below or in
proper form for transfer, or if the purchase of such
Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set
forth in Section 3.5 above; (ii) in the case of options on
Securities, against delivery to the Custodian (or any
Sub-Custodian) of such receipts as are required by the customs
prevailing among dealers in such options; (iii) in the case of
futures contracts and options on futures contracts, against
delivery to the Custodian (or any Sub-Custodian) of evidence
of title thereto in favor of the Company or any nominee
referred to in Section 3.9 below; and (iv) in the case of
repurchase or reverse repurchase agreements
entered into between the Company and a bank which is a member
of the Federal Reserve System or between the Company and a
primary dealer in U.S. Government securities, against delivery
of the purchased Securities either in certificate form or
through an entry crediting the Custodian's account at a
Book-Entry System or Securities Depository with such
Securities;
(b) In connection with the conversion, exchange or surrender, as
set forth in Section 3.7(f) below, of Securities owned by the
Company;
(c) For the payment of any dividends or capital gain distributions
declared by the Company;
(d) In payment of the price of Shares repurchased in open market
purchases or through tender offers as provided in Section 5.1
below;
(e) For the payment of any expense or liability incurred by the
Company, including, but not limited to, the following payments
for the account of the Company: interest; taxes;
administration, investment advisory, accounting, auditing,
transfer agent, custodian, director 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;
(f) For transfer in accordance with the provisions of any
agreement among the Company, the Custodian, and a
broker-dealer registered under the 1934 Act and a member of
the NASD, relating to compliance with rules of the Options
Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with
transactions by the Company;
(g) For transfer in accordance with the provisions of any
agreement among the Company, the Custodian, and a futures
commission merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding account
deposits in connection with transactions by the Company;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution
(including the Custodian), which deposit or account has a term
of one year or less; and
(i) For any other proper purpose, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of
the Board of Directors, certified by an Officer, specifying
the amount and purpose of such payment, declaring such purpose
to be a proper corporate purpose, and naming the person or
persons to whom such payment is to be made.
3.7 Delivery of Securities from Company Custody Account. Upon receipt of
Proper Instructions, the Custodian shall release and deliver
Securities from the Company Custody Account but only in the
following cases:
(a) Upon the sale of Securities for the account of the Company but
only against receipt of payment therefor in cash, by certified
or cashiers check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of
Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Company; provided
that, in any such case, the cash or other consideration is to
be delivered to the Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the
name of the Company, the Custodian or any Sub-Custodian, or
any nominee or nominees of any of the foregoing, or (ii) for
exchange for a different number of certificates or other
evidence representing the same aggregate face amount or number
of units; provided that, in any such case, the new Securities
are to be delivered to the Custodian;
(e) To the broker selling the Securities, 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 cash, if any,
are to be delivered to the Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase or
reverse repurchase agreement entered into by the Company;
(h) In the case of warrants, rights or similar Securities, upon
the exercise thereof, provided that, in any such case, the new
Securities and cash, if any, are to be delivered to the
Custodian;
(i) For delivery in connection with any loans of Securities of the
Company, but only against receipt of such collateral as the
Company shall have specified to the Custodian in Proper
Instructions;
(j) For delivery as security in connection with any borrowings by
the Company requiring a pledge of assets by the Company, but
only against receipt by the Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Company;
(l) For delivery in accordance with the provisions of any
agreement among the Company, the Custodian and a broker-dealer
registered under the 1934 Act and a member of the NASD,
relating to compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange
(or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions
by the Company;
(m) For delivery in accordance with the provisions of any
agreement among the Company, the Custodian, and a futures
commission merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding account
deposits in connection with transactions by the Company; or
(n) For any other proper corporate purpose, but only upon receipt,
in addition to Proper Instructions, of a copy of a resolution
of the Board of Directors, certified by an Officer, specifying
the Securities to be delivered, setting forth the purpose for
which such delivery is to be made, declaring such purpose to
be a proper corporate purpose, and naming the person or
persons to whom delivery of such Securities shall be made.
3.8 Actions Not Requiring Proper Instructions. Unless otherwise
instructed by the Company, the Custodian shall with respect to all
Securities held for the Company:
(a) Subject to Section 9.4 below, collect on a timely basis all
income and other payments to which the Company is entitled
either by law or pursuant to custom in the securities
business;
(b) Present for payment and, subject to Section 9.4 below, collect
on a timely basis the amount payable upon all Securities which
may mature or be called, redeemed, or retired, or otherwise
become payable;
(c) Endorse for collection, in the name of the Company, checks,
drafts and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or
certificates of ownership under the federal income tax laws or
the laws or regulations of any other taxing authority now or
hereafter in effect, and prepare and submit reports to the IRS
and the Company at such time, in such manner and containing
such information as is prescribed by the IRS;
(f) Hold for the Company, either directly or, with respect to
Securities held therein, through a Book-Entry System or
Securities Depository, all rights and similar Securities
issued with respect to Securities of the Company; and
(g) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with Securities and other assets
of the Company.
3.9 Registration and Transfer of Securities. All Securities held for the
Company that are issued or issuable only in bearer form shall be
held by the Custodian in that form, provided that any such
Securities shall be held in a Book-Entry System if eligible
therefor. All other Securities held for the Company may be
registered in the name of the Company, the Custodian, a
Sub-Custodian, or any nominee of any of them, or in the name of a
Book-Entry System, Securities Depository or any nominee of either
thereof. The Company shall furnish to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper
form for transfer, or to register in the name of any of the nominees
referred to above or in the name of a Book-Entry System or
Securities Depository, any Securities registered in the name of the
Company.
3.10 Records.
(a) The Custodian shall maintain complete and accurate records
with respect to Securities, cash or other property held for
the Company, including (i) journals or other records of
original entry containing an itemized daily record in detail
of all receipts and deliveries of Securities and all receipts
and disbursements of cash; (ii) ledgers (or other records)
reflecting (A) Securities in transfer, (B) Securities in
physical possession, (C) monies and Securities borrowed and
monies and Securities loaned (together with a record of the
collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable
and interest receivable; and (iii) canceled checks and bank
records related thereto. The Custodian shall keep such other
books and records of the Company as the Company shall
reasonably request, or as may be required by the 1940 Act,
including, but not limited to, Section 31 of the 1940 Act and
Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall
(i) be maintained in a form acceptable to the Company and in
compliance with the rules and regulations of the SEC, (ii) be
the property of the Company and at all times during the
regular business hours of the Custodian be made available upon
request for inspection by duly authorized officers, employees
or agents of the Company and employees or agents of the SEC,
and (iii) if required to be maintained by Rule 31a-1 under the
1940 Act, be preserved for the periods prescribed in Rule
31a-2 under the 0000 Xxx.
3.11 Company Reports by Custodian. The Custodian shall furnish the
Company with a daily activity statement and a summary of all
transfers to or from the Company Custody Account on the day
following such transfers. At least monthly, the Custodian shall
furnish the Company with a detailed statement of the Securities and
moneys held by the Custodian and the Sub-Custodians for the Company
under this Agreement.
3.12 Other Reports by Custodian. As the Company may reasonably request
from time to time, the Custodian shall provide the Company with
reports on the internal accounting controls and procedures for
safeguarding Securities which are employed by the Custodian or any
Sub-Custodian.
3.13 Proxies and Other Materials. The Custodian shall cause all proxies
relating to Securities which are not registered in the name of the
Company to be promptly executed by the registered holder of such
Securities, without indication of the manner in which such proxies
are to be voted, and shall promptly deliver to the Company such
proxies, all proxy soliciting materials and all notices relating to
such Securities.
3.14 Information on Corporate Actions. The Custodian shall promptly
deliver to the Company all information received by the Custodian and
pertaining to Securities being held by the Company with respect to
optional tender or exchange offers, calls for redemption or
purchase, or expiration of rights as described in the Standards of
Service Guide attached as Exhibit B. If the Company desires to take
action with respect to any tender offer, exchange offer or other
similar transaction, the Company shall notify the Custodian at least
five Business Days prior to the date on which the Custodian is to
take such action. The Company will provide or cause to be provided
to the Custodian all relevant information for any Security which has
unique put/option provisions at least five Business Days prior to
the beginning date of the tender period.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE COMPANY
4.1 Purchase of Securities. Promptly upon each purchase of Securities
for the Company, Written Instructions shall be delivered to the
Custodian, specifying (i) the name of the issuer or writer of such
Securities, and the title or other description thereof, (ii) the
number of shares, principal amount (and accrued interest, if any) or
other units purchased, (iii) the date of purchase and settlement,
(iv) the purchase price per unit, (v) the total amount payable upon
such purchase, and (vi) the name of the person to whom such amount
is payable. The Custodian shall upon receipt of such Securities
purchased by the Company pay out of the moneys held for the account
of the Company the total amount specified in such Written
Instructions to the person named therein. The Custodian shall not be
under any obligation to pay out moneys to cover the cost of a
purchase of Securities for the Company, if in the Company Custody
Account there is insufficient cash available to the Company for
which such purchase was made.
4.2 Liability for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for the purchase of Securities
for the Company is made by the Custodian in advance of receipt of
the Securities purchased and in the absence of specified Written
Instructions to so pay in advance, the Custodian shall be liable to
the Company for such payment.
4.3 Sale of Securities. Promptly upon each sale of Securities by the
Company, Written Instructions shall be delivered to the Custodian,
specifying (i) the name of the issuer or writer of such Securities,
and the title or other description thereof, (ii) the number of
shares, principal amount (and accrued interest, if any), or other
units sold, (iii) the date of sale and settlement, (iv) the sale
price per unit, (v) the total amount payable upon such sale, and
(vi) the person to whom such Securities are to be delivered. Upon
receipt of the total amount payable to the Company as specified in
such Written Instructions, the Custodian shall deliver such
Securities to the person specified in such Written Instructions.
Subject to the foregoing, the Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and
arrange for payment in accordance with the customs prevailing among
dealers in Securities.
4.4 Delivery of Securities Sold. Notwithstanding Section 4.3 above or
any other provision of this Agreement, the Custodian, when
instructed to deliver Securities against payment, shall be entitled,
if in accordance with generally accepted market practice, to deliver
such Securities prior to actual receipt of final payment therefor.
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 the Custodian shall have no
liability for any for the foregoing.
4.5 Payment for Securities Sold. In its sole discretion and from time to
time, the Custodian may credit the Company Custody Account, prior to
actual receipt of final payment thereof, with (i) proceeds from the
sale of Securities which it has been instructed to deliver against
payment, (ii) proceeds from the redemption of Securities or other
assets of the Company, and (iii) income from cash, Securities or
other assets of the Company. Any such credit shall be conditional
upon actual receipt by Custodian of final payment and may be
reversed if final payment is not actually received in full. The
Custodian may, in its sole discretion and from time to time, permit
the Company to use funds so credited to the Company Custody Account
in anticipation of actual receipt of final payment. Any such funds
shall be repayable immediately upon demand made by the Custodian at
any time prior to the actual receipt of all final payments in
anticipation of which funds were credited to the Company Custody
Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Company to
facilitate the settlement of the Company's transactions in the
Company Custody Account. Any such advance shall be repayable
immediately upon demand made by Custodian.
ARTICLE V
REPURCHASE OF COMPANY SHARES
5.1 Transfer of Funds. From such funds as may be available for the
purpose in the relevant Company Custody Account, and upon receipt of
Proper Instructions specifying that the funds are required to
repurchase Shares of the Company in open market purchases or
pursuant to a tender offer, the Custodian shall wire each amount
specified in such Proper Instructions to or through such bank or
broker-dealer as the Company may designate.
5.2 No Duty Regarding Paying Banks. Once the Custodian has wired amounts
to a bank or broker-dealer pursuant to Section 5.1 above, the
Custodian shall not be under any obligation to effect any further
payment or distribution by such bank or broker-dealer.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of the Company, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the
Company, the Custodian and a broker-dealer registered under
the 1934 Act and a member of the NASD (or any futures
commission merchant registered under the Commodity Exchange
Act), relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any
registered contract market), or of any similar organization or
organizations, regarding escrow or other arrangements in
connection with transactions by the Company;
(b) for purposes of segregating cash or Securities in connection
with securities options purchased or written by the Company or
in connection with financial futures contracts (or options
thereon) 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 investment companies in connection with reverse
repurchase agreements and when-issued, delayed delivery and
firm commitment transactions; and
(e) for other proper corporate purposes, but only upon receipt of,
in addition to Proper Instructions, a certified copy of a
resolution of the Board of Directors, certified by an Officer,
setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate
purposes.
Each segregated account established under this Article VI shall be
established and maintained for the Company only. All Proper Instructions
relating to a segregated account shall specify the Company.
ARTICLE VII
COMPENSATION OF CUSTODIAN
The Custodian shall be compensated for providing the services set forth in
this Agreement in accordance with the fee schedule set forth on Exhibit C hereto
(as amended from time to time). The Custodian shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by the Custodian
in performing its duties hereunder. The Company shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Company shall notify the Custodian in writing within 30 calendar days following
receipt of each invoice if the Company is disputing any amounts in good faith.
The Company shall pay such disputed amounts within 10 calendar days of the day
on which the parties agree to the amount to be paid. With the exception of any
fee or expense the Company is disputing in good faith as set forth above, unpaid
invoices shall accrue a finance charge of 1 1/2% per month after the due date.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Company. The Company hereby
represents and warrants to the Custodian, which representations and
warranties shall be deemed to be continuing throughout the term of
this Agreement, 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 Company in accordance with all requisite
action and constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and
remedies of creditors and secured parties; and
(c) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state
and federal, and has obtained all regulatory approvals
necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or
judgment binding on it and no provision of its charter, bylaws
or any contract binding it or affecting its property which
would prohibit its execution or performance of this Agreement.
8.2 Representations and Warranties of the Custodian. The Custodian
hereby represents and warrants to the Company, which representations
and warranties shall be deemed to be continuing throughout the term
of this Agreement, 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 Custodian in accordance with all requisite
action and constitutes a valid and legally binding obligation
of the Custodian, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and
remedies of creditors and secured parties; and
(c) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state
and federal, and has obtained all regulatory approvals
necessary to carry on its business as now conducted; there is
no statute, rule, regulation, order or judgment binding on it
and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its
execution or performance of this Agreement.
ARTICLE IX
CONCERNING THE CUSTODIAN
9.1 Standard of Care. The Custodian shall exercise reasonable care in
the performance of its duties under this Agreement. The Custodian
shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Company in connection with its duties
under this Agreement, except a loss arising out of or relating to
the Custodian's (or a Sub-Custodian's) refusal or failure to comply
with the terms of this Agreement (or any sub-custody agreement) or
from its (or a Sub-Custodian's) bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement (or
any sub-custody agreement). The Custodian shall be entitled to rely
on and may act upon advice of counsel on all matters, and shall be
without liability for any action reasonably taken or omitted
pursuant to such advice. The Custodian shall promptly notify the
Company of any action taken or omitted by the Custodian pursuant to
advice of counsel.
9.2 Actual Collection Required. The Custodian shall not be liable for,
or considered to be the custodian of, any cash belonging to the
Company or any money
represented by a check, draft or other instrument for the payment of
money, until the Custodian or its agents actually receive such cash
or collect on such instrument.
9.3 No Responsibility for Title, etc. So long as and to the extent that
it is in the exercise of reasonable care, the Custodian shall not be
responsible for the title, validity or genuineness of any property
or evidence of title thereto received or delivered by it pursuant to
this Agreement.
9.4 Limitation on Duty to Collect. Custodian shall not be required to
enforce collection, by legal means or otherwise, of any money or
property due and payable with respect to Securities held for the
Company if such Securities are in default or payment is not made
after due demand or presentation.
9.5 Reliance Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument in
writing received by it and reasonably believed by it to be genuine.
The Custodian shall be entitled to rely upon any Oral Instructions
and any Written Instructions actually received by it pursuant to
this Agreement.
9.6 Cooperation. The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Company to
keep the books of account of the Company and/or compute the value of
the assets of the Company. The Custodian shall take all such
reasonable actions as the Company may from time to time request to
enable the Company to obtain, from year to year, favorable opinions
from the Company's independent accountants with respect to the
Custodian's activities hereunder in connection with (i) the
preparation of the Company's reports on Form N-2 and Form N-SAR and
any other reports required by the SEC, and (ii) the fulfillment by
the Company of any other requirements of the SEC.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Company. The Company shall indemnify and hold
harmless the Custodian, any Sub-Custodian and any nominee thereof
(each, an "Indemnified Party" and collectively, the "Indemnified
Parties") from and against any and all claims, demands, losses,
expenses and liabilities of any and every nature (including
reasonable attorneys' fees) that an Indemnified Party may sustain or
incur or that may be asserted against an Indemnified Party by any
person arising directly or indirectly (i) from the fact that
Securities are registered in the name of any such nominee, (ii) from
any action taken or omitted to be taken by the Custodian or such
Sub-Custodian (a) at the request or direction of or in reliance on
the advice of the Company, or (b) upon Proper Instructions, or (iii)
from the performance of its obligations under this Agreement or any
sub-custody agreement, provided that neither the Custodian nor any
such Sub-Custodian shall be indemnified and held harmless from and
against any such claim, demand, loss,
expense or liability arising out of or relating to its refusal or
failure to comply with the terms of this Agreement (or any
sub-custody agreement), or from its bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement (or
any sub-custody agreement). This indemnity shall be a continuing
obligation of the Company, its successors and assigns,
notwithstanding the termination of this Agreement. As used in this
paragraph, the terms "Custodian" and "Sub-Custodian" shall include
their respective directors, officers and employees.
10.2 Indemnification by Custodian. The Custodian shall indemnify and hold
harmless the Company from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that the Company may sustain or incur or
that may be asserted against the Company by any person arising out
of any action taken or omitted to be taken by an Indemnified Party
as a result of the Indemnified Party's refusal or failure to comply
with the terms of this Agreement (or any sub-custody agreement), or
from its bad faith, negligence or willful misconduct in the
performance of its duties under this Agreement (or any sub-custody
agreement). This indemnity shall be a continuing obligation of the
Custodian, its successors and assigns, notwithstanding the
termination of this Agreement. As used in this paragraph, the term
"Company" shall include the Company's directors, officers and
employees.
10.3 Security. If the Custodian advances cash or Securities to the
Company for any purpose, either at the Company's request or as
otherwise contemplated in this Agreement, or in the event that the
Custodian or its nominee incurs, in connection with its performance
under this Agreement, any claim, demand, loss, expense or liability
(including reasonable attorneys' fees) (except such as may arise
from its or its nominee's bad faith, negligence or willful
misconduct), then, in any such event, any property at any time held
for the account of the Company shall be security therefor, and
should the Company fail promptly to repay or indemnify the
Custodian, the Custodian shall be entitled to utilize available cash
of the Company and to dispose of other assets of the Company to the
extent necessary to obtain reimbursement or indemnification.
10.4 Miscellaneous.
(a) Neither party to this Agreement shall be liable to the other
party for consequential, special or punitive damages under any
provision of this Agreement.
(b) The indemnity provisions of this Article shall indefinitely
survive the termination and/or assignment of this Agreement.
(c) In order that the indemnification provisions contained in this
Article shall apply, it is understood that if in any case the
indemnitor may be asked to indemnify or hold the indemnitee
harmless, the indemnitor shall be fully and promptly advised
of all pertinent facts concerning the situation in
question, and it is further understood that the indemnitee
will use all reasonable care to notify the indemnitor promptly
concerning any situation that presents or appears likely to
present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee
against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects,
it will so notify the indemnitee and thereupon the indemnitor
shall take over complete defense of the claim, and the
indemnitee shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification
under this section. The indemnitee shall in no case confess
any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except
with the indemnitor's prior written consent.
ARTICLE XI
FORCE MAJEURE
Neither the Custodian nor the Company shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that in the event of a failure or delay, the
Custodian (i) shall not discriminate against the Company in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement, and (ii) shall
use its best efforts to ameliorate the effects of any such failure or delay.
ARTICLE XII
PROPRIETARY AND CONFIDENTIAL INFORMATION
The Custodian agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Company,
all records and other information relative to the Company and prior, present, or
potential shareholders of the Company (and clients of said shareholders), and
not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except (i) after prior
notification to and approval in writing by the Company, which approval shall not
be unreasonably withheld and may not be withheld where the Custodian may be
exposed to civil or criminal contempt proceedings for failure to comply, (ii)
when requested to divulge such information by duly constituted authorities, or
(iii) when so requested by the Company. Records and other information which have
become known to the public through no wrongful act of the Custodian or any of
its employees, agents or representatives, and information that was already in
the possession of the Custodian prior to receipt thereof from the Company or its
agent, shall not be subject to this paragraph.
Further, the Custodian will adhere to the privacy policies adopted by the
Company pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified
from time to time. In this regard, the Custodian shall have in place and
maintain physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the
Company and its shareholders.
ARTICLE XIII
EFFECTIVE PERIOD; TERMINATION
13.1 Effective Period. This Agreement shall become effective as of the
date first written above and will continue in effect for a period of
one year.
13.2 Termination. Subsequent to the initial one-year term, this Agreement
may be terminated by either party upon giving 90 days prior written
notice to the other party or such shorter period as is mutually
agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the
other party of any material term of this Agreement if such breach is
not cured within 15 days of notice of such breach to the breaching
party. In addition, the Company may, at any time, immediately
terminate this Agreement in the event of the appointment of a
conservator or receiver for the Custodian by regulatory authorities
or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
13.3 Appointment of Successor Custodian. If a successor custodian shall
have been appointed by the Board of Directors, the Custodian shall,
upon receipt of a notice of acceptance by the successor custodian,
on such specified date of termination (i) deliver directly to the
successor custodian all Securities (other than Securities held in a
Book-Entry System or Securities Depository) and cash then owned by
the Company and held by the Custodian as custodian, and (ii)
transfer any Securities held in a Book-Entry System or Securities
Depository to an account of or for the benefit of the Company at the
successor custodian, provided that the Company shall have paid to
the Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled. In addition, the
Custodian shall, at the expense of the Company, transfer to such
successor all relevant books, records, correspondence, and other
data established or maintained by the Custodian under this Agreement
in a form reasonably acceptable to the Company (if such form differs
from the form in which the Custodian has maintained the same, the
Company shall pay any expenses associated with transferring the data
to such form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from the
Custodian's personnel in the establishment of books, records, and
other data by such successor. Upon such delivery and transfer, the
Custodian shall be relieved of all obligations under this Agreement.
13.4 Failure to Appoint Successor Custodian. If a successor custodian is
not designated by the Company on or before the date of termination
of this
Agreement, then the Custodian shall have the right to deliver to a
bank or trust company of its own selection, which bank or trust
company (i) is a "bank" as defined in the 1940 Act, and (ii) has
aggregate capital, surplus and undivided profits as shown on its
most recent published report of not less than $25 million, all
Securities, cash and other property held by Custodian under this
Agreement and to transfer to an account of or for the Company at
such bank or trust company all Securities of the Company held in a
Book-Entry System or Securities Depository. Upon such delivery and
transfer, such bank or trust company shall be the successor
custodian under this Agreement and the Custodian shall be relieved
of all obligations under this Agreement. In addition, under these
circumstances, all books, records and other data of the Company
shall be returned to the Company.
ARTICLE XIV
MISCELLANEOUS
14.1 Compliance with Laws. The Company has and retains primary
responsibility for all compliance matters relating to the Company,
including but not limited to compliance with the 1940 Act, the
Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the
USA Patriot Act of 2002 and the policies and limitations of the
Company relating to its portfolio investments as set forth in its
Prospectus and statement of additional information. The Custodian's
services hereunder shall not relieve the Company of its
responsibilities for assuring such compliance or the Board of
Director's oversight responsibility with respect thereto.
14.2 Amendment. This Agreement may not be amended or modified in any
manner except by written agreement executed by the Custodian and the
Company, and authorized or approved by the Board of Directors.
14.3 Assignment. This Agreement shall extend to and be binding upon the
parties hereto and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by
the Company without the written consent of the Custodian, or by the
Custodian without the written consent of the Company accompanied by
the authorization or approval of the Board of Directors.
14.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to
conflicts of law principles. To the extent that the applicable laws
of the State of Ohio, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control,
and nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or order of the SEC thereunder.
14.5 No Agency Relationship. Nothing herein contained shall be deemed to
authorize or empower either party to act as agent for the other
party to this Agreement, or to conduct business in the name, or for
the account, of the other party to this Agreement.
14.6 Services Not Exclusive. Nothing in this Agreement shall limit or
restrict the Custodian from providing services to other parties that
are similar or identical to some or all of the services provided
hereunder.
14.7 Invalidity. Any provision of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such
case, the parties shall in good faith modify or substitute such
provision consistent with the original intent of the parties.
14.8 Notices. Any notice required or permitted to be given by either
party to the other shall be in writing and shall be deemed to have
been given on the date delivered personally or by courier service,
or three days after sent by registered or certified mail, postage
prepaid, return receipt requested, or on the date sent and confirmed
received by facsimile transmission to the other party's address set
forth below:
Notice to the Custodian shall be sent to:
U.S. Bank National Association
000 Xxxxxx Xxxxxx, X.X. XX-XX-X0XX
Xxxxxxxxxx, Xxxx 00000
Attention: Fund Services
Facsimile: (000) 000-0000
and notice to the Company shall be sent to:
Tortoise North American Energy Corporation
00000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, CEO and President
Facsimile: (000) 000-0000
14.9 Multiple Originals. This Agreement may be executed on two or more
counterparts, each of which when so executed shall be deemed an
original, but such counterparts shall together constitute but one
and the same instrument.
14.10 No Waiver. No failure by either party hereto to exercise, and no
delay by such party in exercising, any right hereunder shall operate
as a waiver thereof. The exercise by either party hereto of any
right hereunder shall not preclude the exercise of any other right,
and the remedies provided herein are cumulative and not exclusive of
any remedies provided at law or in equity.
14.11 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
TORTOISE NORTH AMERICAN
ENERGY CORPORATION U.S. BANK NATIONAL ASSOCIATION
By: ______________________________ By: _______________________________
Title: ___________________________ Title: ____________________________
EXHIBIT A
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Company to administer the Company Custody Accounts.
Authorized Persons Specimen Signatures
------------------ --------------------------
President: __________________________
Secretary: __________________________
Treasurer: __________________________
Vice President: __________________________
Other: __________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
A-1
EXHIBIT B
U.S. BANK INSTITUTIONAL CUSTODY SERVICES
STANDARDS OF SERVICE GUIDE
U.S. Bank, N.A. ("USBank") is committed to providing superior quality
service to all customers and their agents at all times. We have compiled this
guide as a tool for our clients to determine our standards for the processing of
security settlements, payment collection, and capital change transactions.
Deadlines recited in this guide represent the times required for USBank to
guarantee processing. Failure to meet these deadlines will result in settlement
at our client's risk. In all cases, USBank will make every effort to complete
all processing on a timely basis.
USBank is a direct participant of the Depository Trust Company, a direct
member of the Federal Reserve Bank of Cleveland, and utilizes the Bank of New
York as its agent for ineligible and foreign securities.
For corporate reorganizations, USBank utilizes SEI's Reorg Source,
Financial Information, Inc., XCITEK, DTC Important Notices, Capital Changes
Daily (CCH) and the Wall Street Journal.
For bond calls and mandatory puts, USBank utilizes SEI's Bond Source,
Xxxxx Information Systems, Standard & Poor's Corporation, XCITEK, and DTC
Important Notices. USBank will not notify clients of optional put opportunities.
Any securities delivered free to USBank or its agents must be received
three (3) business days prior to any payment or settlement in order for the
USBank standards of service to apply.
Should you have any questions regarding the information contained in this
guide, please feel free to contact your account representative.
The information contained in this Standards of Service Guide is
subject to change. Should any changes be made USBank will provide
you with an updated copy of its Standards of Service Guide.
B-1
USBANK SECURITY SETTLEMENT STANDARDS
TRANSACTION TYPE INSTRUCTIONS DEADLINES* DELIVERY INSTRUCTIONS
DTC 1:30 P.M. on Settlement Date DTC Participant #0000
Xxxxx Xxxx XX 00000
Institutional #________________
For Account #____________
Federal Reserve Book Entry 12:30 P.M. on Settlement Date Federal Reserve Bank of Cleveland
for Firstar Bank, N.A. ABA# 000000000
CINTI/1050
For Account #_____________
Federal Reserve Book Entry (Repurchase 1:00 P.M. on Settlement Date Federal Reserve Bank of Cleveland
Agreement Collateral Only) for Firstar Bank, N.A. ABA# 000000000
CINTI/1040
For Account #_____________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BYORK
(GNMA Book Entry) Firstar Bank / 117612
Physical Securities 9:30 A.M. EST on Settlement Date Bank of New York
(for Deliveries, by 4:00 P.M. on One Wall Street- 3rd Floor - Window A
Settlement Date minus 1) Xxx Xxxx, XX 00000
For account of Firstar Bank / Cust #117612
Attn: Xxxxxx Xxxxxx
CEDEL/EURO-CLEAR 11:00 A.M. on Settlement Date minus 2 Cedel a/c 55021
FFC: a/c 387000
Firstar Bank /Global Omnibus
Euroclear a/c 97816
FFC: a/c 387000
Firstar Bank/Global Omnibus
Cash Wire Transfer 3:00 P.M. Firstar Bank, X.X. Xxxxx/Trust ABA# 000000000
Credit Account #112950027
Account of Firstar Trust Services
Further Credit to ___________
Account # _______________
* All times listed are Eastern Standard Time.
B-2
USBANK PAYMENT STANDARDS
SECURITY TYPE INCOME PRINCIPAL
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs *
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Certificates* Payable Date Payable Date
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank Book Entry Payable Date Payable Date
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
NOTE: If a payable date falls on a weekend or bank holiday, payment
will be made on the immediately following business day.
B-3
USBANK CORPORATE REORGANIZATION STANDARDS
DEADLINE FOR CLIENT INSTRUCTIONS TRANSACTION
TYPE OF ACTION NOTIFICATION TO CLIENT TO USBANK POSTING
Rights, Warrants, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
and Optional Mergers expiration or receipt of notice
Mandatory Puts with Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Option to Retain expiration or receipt of notice
Class Actions 10 business days prior to expiration 5 business days prior to expiration Upon receipt
date
Voluntary Tenders, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Exchanges, expiration or receipt of notice
and Conversions
Mandatory Puts, Defaults, At posting of funds or securities None Upon receipt
Liquidations, Bankruptcies, received
Stock Splits, Mandatory
Exchanges
Full and Partial Calls Later of 10 business days prior to None Upon receipt
expiration or receipt of notice
NOTE: Fractional shares/par amounts resulting from any of the above
will be sold.
B-4
EXHIBIT C
DOMESTIC CUSTODY SERVICES
ANNUAL FEE SCHEDULE
Annual fee based upon market value per fund*:
1.5 basis points on the first $100 million
1 basis point on the balance
Minimum annual fee per fund - $4,800
Portfolio Transaction Fees
$ 7.00 per US Bank repurchase agreement transaction
$ 9.00 per book entry security (depository or Federal Reserve system) and non-US
Bank repurchase agrmt
$25.00 per portfolio transaction processed through our New York custodian
definitive security (physical)
$ 8.00 per principal paydown
$15.00 per option/future contract written, exercised or expired
$50.00 per Cedel/Euroclear transaction
$15.00 per mutual fund trade
$15.00 per Fed Wire
$15.00 per margin variation Fed wire
$ 6.00 per short sale
$150.00 per segregated account per year
A transaction is a purchase/sale of a security, free receipt/free delivery,
maturity, tender or exchange.
No charge for the initial conversion free receipt.
Overdrafts - charged to the account at prime interest rate plus 2.
Plus out-of-pocket expenses, and extraordinary expenses based upon complexity,
including items such as shipping fees or transfer fees.
Fees are billed monthly.
* Subject to CPI increase, Milwaukee MSA.
C-1
GLOBAL SUB-CUSTODIAL SERVICES
BANK OF NEW YORK
ANNUAL FEE SCHEDULE
COUNTRY INSTRUMENT SAFEKEEPING TRANSACTION
(BPS) FEE
Argentina All 15.00 $ 40
Australia All 2.00 $ 30
Austria Equities/Bonds 3.50 $ 35
Austria Depo Receipt 20.00 $ 35
Austria non ATS ALL 25.00 $ 90
Bahrain All 50.00 $ 140
Bangladesh All 40.00 $ 000
Xxxxxxx All 2.50 $ 45
Benin All 40.00 $ 155
Bermuda All 15.00 $ 60
Bolivia All 60.00 $ 150
Botswana All 25.00 $ 50
Brazil All 15.00 $ 00
Xxxxxxxx All 40.00 $ 80
Burkina Faso All 40.00 $ 000
Xxxxxx All 1.25 $ 00
Xxxxx All 20.00 $ 60
China-Shanghai All 15.00 $ 65
China-Shenzhen All 15.00 $ 65
Columbia All 40.00 $ 000
Xxxxx Xxxx All 15.00 $ 00
Xxxxxxx All 35.00 $ 65
Cyprus All 15.00 $ 00
Xxxxx Xxxxxxxx All 20.00 $ 00
Xxxxxxx All 3.00 $ 50
EASDAQ All 5.50 $ 00
Xxxxxxx All 35.00 $ 65
Egypt All 40.00 $ 000
Xxxxxxx All 7.00 $ 25
Euromarkets All 1.50 $ 10
Finland All 5.00 $ 00
Xxxxxx All 2.50 $ 45
Germany All 1.00 $ 30
Ghana All 25.00 $ 00
Xxxxxx All 20.00 $ 105
Guinea Bissau All 40.00 $ 155
Hong Kong All 6.00 $ 00
Xxxxxxx All 35.00 $ 135
Iceland All 28.00 $ 80
India All 65.00 $ 000
Xxxxxxxxx All 12.00 $ 000
Xxxxxxx All 3.00 $ 00
Xxxxxx All 15.00 $ 45
Italy All 3.00 $ 50
Ivory Coast All 40.00 $ 155
Jamaica All 35.00 $ 00
Xxxxx All 1.50 $ 15
Jordan All 40.00 $ 125
Kazakhstan Equities 60.00 $ 150
Kazakhstan Bonds 40.00 $ 160
Kenya All 30.00 $ 00
Xxxxxx Equities/Bonds 30.00 $ 00
Xxxxxx Gov't Bonds 15.00 $ 75
Lebanon All 25.00 $ 90
Lithuania All 20.00 $ 50
Luxembourg All 4.00 $ 00
Xxxxxxxx All 6.00 $ 80
Mali All 40.00 $ 000
Xxxxx All 22.00 $ 75
Mauritius All 30.00 $ 000
Xxxxxx All 3.00 $ 20
Morocco All 35.00 $ 000
Xxxxxxx All 30.00 $ 00
Xxxxxxxxxxx All 3.00 $ 25
New Zealand All 3.00 $ 40
Niger All 40.00 $ 000
Xxxxxxx All 30.00 $ 00
Xxxxxx All 3.00 $ 00
Xxxx All 50.00 $ 140
Pakistan All 30.00 $ 100
Palestinian All 45.00 $ 000
Xxxxxx All 65.00 $ 00
Xxxx All 45.00 $ 000
Xxxxxxxxxxx All 8.00 $ 75
Poland All 25.00 $ 50
Portugal All 15.00 $ 85
Qatar All 45.00 $ 000
Xxxxxxx All 35.00 $ 100
Russia Equities/Bonds 30.00 $ 200
Russia MINFIN 15.00 $ 50
Senegal All 40.00 $ 000
Xxxxxxxxx All 3.00 $ 00
Xxxxxx Xxxxxxxx All 25.00 $ 000
Xxxxxxxx All 25.00 $ 000
Xxxxx Xxxxxx All 3.00 $ 00
Xxxxx Xxxxx All 10.00 $ 20
Spain All 3.00 $ 00
Xxx Xxxxx All 15.00 $ 60
Swaziland All 30.00 $ 50
Sweden All 2.00 $ 00
Xxxxxxxxxxx All 2.00 $ 50
Taiwan All 20.00 $ 000
Xxxxxxxx All 6.00 $ 45
Togo All 40.00 $ 000
Xxxxxxxx & Xxxxxx All 30.00 $ 65
Tunisia All 40.00 $ 00
Xxxxxx All 15.00 $ 00
Xxxxxx Xxxxxxx All 1.50 $ 10
Ukraine All 30.00 $ 45
Uruguay All 50.00 $ 65
Venezuela All 40.00 $ 000
Xxxxxx All 30.00 $ 50
Zimbabwe All 30.00 $ 50
*Any non-Eurobond assets held in CEDEL and Euroclear will be charged at the
local market price quote.
BASE FEE
A monthly base charge of $1,200.00 per account will apply.
*Any Non-Eurobond assets held in CEDEL and Euroclear will be charged at the
local market price quote.
** All fees quoted are payable monthly
C-2
