EXHIBIT J
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (this "Agreement") dated as of October
9, 2006 is entered into by and among XXXXXXXXXX OPPORTUNITIES FUND V, LLC (the
"Owner") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as custodian (in such
capacity, the "Custodian").
W I T N E S S E T H:
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WHEREAS, the Owner has acquired assets and may from time to
time acquire additional assets (collectively, the "Assets"); and
WHEREAS, the Owner desires to deposit the Assets with the
Custodian to hold on the Owner's behalf and to direct the Custodian with respect
to the transfer and release thereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Owner hereby appoints the Custodian as custodian of the
Assets pursuant to the terms of this Agreement and the Custodian accepts
such appointment. The Custodian hereby agrees to accept the Assets
deposited with the Custodian by the Owner from time to time, and agrees to
hold, release and transfer the same in accordance with the provisions of
this Agreement. The Assets delivered to the Custodian pursuant to this
Agreement will promptly be credited to a separate custodial account
entitled "TOF V Operating Account (the "Operating Account") and held on
behalf of the Owner. The Custodian shall also establish accounts on behalf
of the Owner entitled (i) "TOF V Revolver Account" (the "Revolver Account")
and (ii) "TOF V Equity Account" (the "Equity Account" and, together with
the Operating Account and the Revolver Account, the "Accounts").
The Custodian shall use due care in the custody of the Assets and shall
segregate and maintain continuous custody of the Assets in the Accounts in
accordance with such standards as are customary for such custody in the
registered investment company industry and in the Custodian's care of similar
assets for registered investment companies. The Custodian shall not be
responsible for any assets of the Owner held or received by the Owner or others
and not delivered to and accepted by the Custodian as hereinafter provided. 2.
Any amounts or proceeds received by the Custodian in connection with the Assets
shall be deposited in the Operating Account in accordance with its usual
procedures governing amounts received in respect of securities held by it. At
the direction of the Owner, Assets or amounts on deposit in the Operating
Account shall be withdrawn by the Custodian and deposited into the Revolver
Account. Amounts received in respect of capital calls shall be deposited into
the TOF V Equity Account as directed by the Owner.
Amounts shall be withdrawn from the Accounts at the direction of
the Owner (which may be in the form of standing directions) and remitted in
accordance with wiring instructions provided by the Owner to pay for assets
purchased against delivery of such assets, to pay for
proper expenses of the Owner or to be deposited into one of the other Accounts.
If requested by the Owner, the Custodian shall invest funds on deposit in the
Accounts in accordance with investment directions provided by the Owner to the
Custodian in writing. The Custodian shall not be liable for losses on any
investments made by it pursuant to and in compliance with such instructions.
3. The Owner shall instruct the Custodian in writing with regard to
(a) the exercise of any rights or remedies with respect to the Assets,
including, without limitation, waivers and voting rights, and (b) taking any
other action in connection with the Assets, including, without limitation, any
purchase, sale, conversion, redemption, exchange, retention or other
transaction relating to the Assets. In the absence of any instructions provided
to the Custodian by the Owner, the Custodian shall have no obligation to take
any action with respect to the Assets.
4. Upon receipt of a written request for release from the Owner, the
Custodian shall deliver the Assets held by it and identified in the request for
release to another qualified custodian appointed by the Owner. The Custodian
shall have no further obligations with respect to the Assets released at the
direction of the Owner.
5. Upon receipt of advance written instructions from the Owner, the
Custodian shall, using funds on deposit in the applicable Account, purchase on
behalf of the Owner any securities or other assets identified to the Custodian
by the Owner (along with any other information necessary to effect to such
purchase) against delivery of such asset by the seller thereof to the Account.
Any Asset purchased as described above shall be promptly deposited into the
applicable Account. All such instructions from the Owner shall be given by no
less than two authorized persons of the Owner (each, an "Authorized Person"),
which Authorized Persons shall be identified to the Custodian in writing in a
letter dated the date hereof.
The Custodian shall not be required to comply with any instructions to
settle the purchase of any securities or other assets for the Accounts, unless
there are sufficient immediately available funds in the related Account. The
Owner assumes all responsibility and liability for all risks involved in
connection with the Custodian's making a purchase on behalf of the Owner,
including any risk of non-delivery.
6. Subject to the requirements of Section 5, settlement and payment
for Assets received for the Accounts and delivery of Assets out of the Accounts
may be effected in accordance with the customary or established securities
trading or securities processing practices and procedures in the jurisdiction
or market in which the transaction occurs. The Custodian shall not be liable
for any loss which results from effecting transactions in accordance with the
customary or established securities trading or securities processing practices
and procedures in the applicable jurisdiction or market.
7. The Custodian shall keep accurate and detailed accounts of all
investments, receipts, disbursements, purchases and other transactions for the
Accounts. Upon the request of the Owner, the Custodian will make available to
the Owner, at such other times as agreed upon between the Owner and the
Custodian, any information in respect of the Assets in the Accounts maintained
by the Custodian.
8. The Custodian shall be obligated only for the performance of such
duties as are specifically set forth in this Agreement and may rely and shall
be protected in acting or refraining from acting on any written notice,
request, waiver, consent or instrument believed by it to be genuine and to have
been signed or presented by the proper party or parties. The Custodian shall
have no duty to determine or inquire into the happening or occurrence of any
event or contingency, and it is agreed that its duties are purely administerial
in nature. The Custodian may consult with and obtain advice from legal counsel
as to any provision hereof or its duties hereunder. The Custodian shall not be
liable for any action taken or omitted by it in good faith and reasonably
believed by it to be authorized hereby, except for actions arising from the
negligence or willful misconduct of the Custodian. Notwithstanding anything in
this Agreement to the contrary, in no event shall the Custodian be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits).
9. The Custodian will perform the duties and provide the services
called for hereunder for the compensation set forth in a separate fee letter in
connection herewith.
The Owner agrees to indemnify, defend and hold the Custodian, its
officers, directors, employees and agents (collectively, "Indemnified Persons")
harmless from and against any and all losses, claims, damages, demands,
expenses, costs, causes of action, judgments or liabilities that may be
incurred by any Indemnified Person arising directly or indirectly out of or in
connection with this Agreement, including the reasonable legal costs and
expenses as such expenses are incurred (including, without limitation, the
expenses of any experts, counsel or agents) of investigating, preparing for or
defending itself against any action, claim or liability in connection with its
performance hereunder or thereunder. The Owner also hereby agrees to hold the
Custodian harmless from any liability or loss resulting from any taxes or other
governmental charges, and any expense related thereto, which may be imposed, or
assessed with respect to any Assets in the Accounts and also agrees to hold the
Custodian and its respective nominees harmless from any liability as record
holder of Assets in the Accounts. The Owner may remit payment for expenses and
indemnities owed to the Custodian hereunder or, in the absence thereof, the
Custodian may from time to time deduct payment of such amounts from the
Accounts. In no event, however, shall the Owner be obligated to indemnify any
Indemnified Person and hold any Indemnified Person harmless from any losses,
claims, damages, demands, expenses, costs, causes of action, judgments or
liabilities incurred by any Indemnified Person as a result of its own bad
faith, willful misfeasance or gross negligence or reckless disregard of the
Custodian's duties. The provisions of this section shall survive the
termination of this Agreement.
10. The Custodian may at any time resign hereunder by giving written
notice of its resignation to the Owner at least twenty (20) business days prior
to the date specified for such resignation to take effect, and upon the
effective date of such resignation, the Assets hereunder shall be delivered by
it to such qualified successor custodian as may be designated in writing by the
Owner, whereupon all the Custodian's obligations hereunder shall cease and
terminate. If within sixty (60) days following the giving of a notice of
resignation by the Custodian, the Custodian does not receive from the Owner a
written notice specifying the name of a qualified successor custodian, the
Custodian, at its election, may petition a court of competent jurisdiction for
the appointment of a qualified successor custodian. The Custodian's sole
responsibility thereafter shall be to keep safely all Assets then held by it
and to deliver the same to a person
designated by the Owner or in accordance with the direction of a final
order or judgment of a court of competent jurisdiction.
The Owner may remove the Custodian at any time by giving the
Custodian at least twenty (20) Business Days' prior written notice. Upon
receipt of the identity of the qualified successor custodian as designated by
the Owner in writing, the Custodian shall either deliver the Assets then held
hereunder to the successor Custodian, less the Custodian's fees, costs and
expenses or other obligations owed to the Custodian, or hold such Assets (or
any portion thereof), pending distribution, until all such fees, costs and
expenses or other obligations are paid. Upon delivery of the Assets to the
successor custodian, the Custodian shall have no further duties,
responsibilities or obligations hereunder. ]
11. This Agreement shall be construed in accordance with, and governed
by, the laws of the State of New York, without giving effect to the conflict of
law principles thereof.
12. This Agreement may not be assigned or transferred by the Owner.
This Agreement shall remain in full force and effect until the earlier to occur
of (a) the transfer or release of all of the Assets in accordance with the
written instructions of the Owner in respect thereto and (b) the transfer by
the Owner of its rights and interests in the Assets. The parties hereto shall
not be bound by any modification, amendment, termination, cancellation,
recission or supersession of this Agreement unless the same shall be in writing
and signed by the Custodian and the Owner.
13. Any notices or other communications hereunder shall be given at
the addresses stated below, by prepaid first class mail, overnight courier,
facsimile or electronic mail.
If to the Owner:
Xxxxxxxxxx Opportunities Fund V, LLC 0000
00xx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Fax: 000-000-0000
Email: x.xxxxxxxxx@Xxxxxxxxxxxxxxxxx.xxx
If to the Custodian:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: CDO Trust Services-- Xxxxxxxxxx Opportunities Fund V, LLC
Fax: (000) 000-0000
Email: Xxxxx.X.Xxxxxxx@xxxxxxxxxx.xxx; Xxxx.Xxxxx@xxxxxxxxxx.xxx
14. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same
instrument. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
15. The Custodian agrees to reasonably cooperate with the Owner in
connection with the negotiation of a successor custodial agreement in standard
form for investment companies under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), which agreement shall be in form
satisfactory to both the Owner and the Custodian. Notwithstanding anything
herein to the contrary, the Custodian shall have no responsibility for ensuring
or maintaining the Owner's compliance with the Investment Company Act, except
to the extent that any such responsibilities are expressly agreed to by the
Custodian in a successor custodial agreement.
[SIGNATURE PAGE FOLLOWS]
XXXXXXXXXX OPPORTUNITIES FUND V, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
