CUSTODY AGREEMENT
EXHIBIT
j.3
THIS AGREEMENT is made this __________
day of May, 2008, by and between FIRST NATIONAL BANK OF OMAHA, a national
banking association (“Bank”), and MILLENNIUM INDIA ACQUISITION COMPANY INC., a
Delaware corporation and a closed-end management investment
company (“Customer”) registered under the Investment Company Act of
1940, as amended (the “1940 Act”).
1. Bank
shall open and maintain in its Trust Department, in the name of Customer, a
custodial account or accounts for all securities, cash, or other property (the
“Property”) now or hereafter deposited with and accepted by
Bank. Bank shall have no investment management authority with respect
to the Property.
2. Except
with respect to physical securities registered in the name of Customer and held
in Bank’s vault for safekeeping, Bank shall present all maturing or called
securities or coupons for collection, and shall receive payment of income and
principal cash, but without any responsibility for the non-payment
thereof. Bank may, from time to time, give credit for income and/or
principal items prior to having received final payment therefor. All
such credits shall be given subject to final payment of the items in cash, and
Bank reserves the right to recover the amount of any such conditional credit,
either by charging an account of Customer or obtaining repayment from Customer
on demand.
3. All
security deliveries for an account of Customer shall be pursuant to instructions
of Customer, or if applicable, Customer’s authorized
representative. Bank shall honor such instructions only if the
instructions are in writing (including facsimile and electronic mail) and Bank,
in good faith, believes them to be genuine and to have been given by an
authorized person. Persons authorized to provide delivery
instructions are identified in the attached Schedule A.
4. All
securities trades for an account of Customer shall be settled only pursuant to
instructions of Customer, or if applicable, Customer’s authorized
representative, and shall be solely at the risk of Customer. Bank
shall honor trading instructions only if the instructions are in writing
(including facsimile and electronic mail), and the Bank, in good faith, believes
them to be genuine and to have been given by an authorized person; provided,
however, Bank may at its option accept instructions by telephone on a recorded
line. Bank shall not be required to comply with any trading
instruction which in its judgment may subject it to liability or expense, unless
indemnified in manner and amount satisfactory to it.
5. Bank
shall have no power or authority to deliver, assign, hypothecate, pledge, or
otherwise dispose of any of Customer’s securities, except pursuant to the terms
of this Agreement. Bank shall keep the securities received by it
hereunder separate and distinct from securities owned by itself or others, to
the end that each and every item received by it hereunder shall at all times be
identified and identifiable as the property solely of Customer; provided,
however, that Bank is permitted to use a nominee registration for Customer’s
securities, and may place securities of Customer with a securities depository, a
sub-custodian, or a safekeeping facility operated by the Federal Reserve
System. Placement of Customer’s securities by Bank with a securities
depository, a sub-custodian, or a safekeeping facility shall neither augment nor
diminish Bank’s responsibilities and rights under any other paragraph of this
Agreement.
Customer
shall have the right to examine physical securities held hereunder at reasonable
intervals and at reasonable times, provided that a representative of Bank shall
accompany Customer upon such examination, and to obtain from Bank a copy of its
annual Independent Service Auditors’ Report or any similar report.
6. Neither
the Bank nor its nominees shall vote any of the securities included in the
Property or authorize the voting of such securities or give consent, approval,
or waiver with respect thereto, except as directed by Customer, or if
applicable, Customer’s authorized representative.
7. Bank
shall furnish Customer, and any other persons designated by Customer, with
periodic statements, no more frequently than monthly, showing all transactions
and a list of assets. Customer agrees that, so long as Bank furnishes
Customer with at least quarterly statements, Bank shall not be required to
furnish Customer with notification of securities transactions, as defined in
applicable governmental regulations; provided, however, if requested by
Customer, Bank shall furnish notification in the form and within the time set
forth in applicable governmental regulations at no additional cost to
Customer.
8. With
respect to corporate actions relating to any of the securities included in the
Property such as tender offers, subscription rights, mergers, and other similar
actions of which Bank’s corporate action department receives notice, Bank shall
notify Customer or, if applicable, Customer’s authorized representative thereof,
and shall take such action with respect thereto as directed by Customer or
Customer’s authorized representative; provided, however, if Bank does not
receive instructions by the deadline established by Bank’s corporate action
department, Bank shall have no liability for any omission to act in the absence
thereof. Bank shall honor such instructions only if the instructions
are in writing (including facsimile and electronic mail), and the Bank, in good
faith, believes them to be genuine and to have been given by an authorized
person; provided, however, Bank may at its option accept instructions
by telephone on a recorded line.
9. Bank’s
fee for services hereunder is set forth in the attached Schedule B, shall be
invoiced monthly in arrears, and shall be deducted from the account if not
promptly paid. The fee shall be calculated as a percentage of
the market value of the account or accounts during the month. In any
partial month, the fee shall be pro-rated on a daily basis.
10. Unless
otherwise directed, Bank shall invest cash balances in Administration shares of
the Xxxxxxx Xxxxx Financial Square Prime Obligations Money Market Fund (the
“Fund”). Customer acknowledges that Customer has received a current prospectus
for the Fund, that Bank receives compensation from the Fund as set forth in the
prospectus and from the Fund’s investment adviser, Xxxxxxx Sachs Asset
Management, L.P., based on average daily balance of Fund shares, that Fund
shares are neither obligations of nor guaranteed by Bank, and are not insured by
any governmental agency, and that although the Fund seeks to preserve a price of
$1.00/share, this is not guaranteed.
11. Bank
shall honor disbursement instructions only if the instructions are in writing
(including facsimile and electronic mail) and Bank, in good faith, believes them
to be genuine and to have been given by an authorized person; provided, however,
Bank may make a disbursement to a bank or trust account of Customer (or if
applicable an affiliate of Customer), or
pay a
routine invoice or tax obligation of Customer, on the basis of oral instructions
which Bank, in good faith, believes to be genuine and
authorized. Persons authorized to provide disbursement instructions
are identified in Schedule A.
12. If
Bank should advance funds for the purchase of a security which results in an
overdraft, or if an overdraft arises for some other reason, including, without
limitation, because of a reversal of a conditional credit, such overdraft shall
be deemed to be a loan made by Bank to Customer payable on demand, and shall
bear interest from the date incurred at a rate ordinarily charged by Bank to its
institutional customers. In addition, Customer agrees that Bank shall
have a continuing lien, security interest, and security entitlement in and to
the Property. Customer authorizes Bank to charge any such overdraft,
together with interest due thereon, against Customer’s account.
13. The
books and records pertaining to Customer which are in possession of Bank shall
be the property of Customer. Such books and records shall be prepared
and maintained as required by the 1940 Act and the rules thereunder. Customer,
or its authorized representatives, shall have access to such books and records
during Bank’s normal business hours. Upon the reasonable request of
Customer, copies of any such books and records shall be provided by Bank to
Customer or its authorized representative. Upon the reasonable
request of Customer, Bank shall provide in hard copy or on computer disc any
records included in any such delivery which are maintained by Bank on a computer
disc, or are similarly maintained.
14. It
is understood that Bank is authorized to supply any information regarding the
Accounts which is required by any law, regulation or rule now or hereafter in
effect. Bank shall provide Customer with any report obtained by Bank
on the system of internal accounting control of a depository, and with such
reports on its own system of internal accounting control as Customer may
reasonably request from time to time. Bank shall furnish annually to
Customer its SAS 70 Report or a letter prepared by Bank’s accountants with
respect to Bank’s internal systems and controls in a form generally provided by
Bank to other investment companies for which Bank acts as
custodian.
15. Bank
shall be liable for any loss of Property which results from its bad faith,
negligence or willful misconduct, or that of its agents, officers, or employees,
and shall promptly replace the Property or the value
thereof. Bank shall secure and maintain insurance protection in
an adequate amount covering Bank’s duties and activities as custodian, and such
insurance shall comply with any regulatory requirements applicable to Bank as
custodian. If Customer is a corporation, its Board of Directors or a
committee thereof has authorized this Agreement. This
Agreement, which shall be governed by the laws of the State of Nebraska, is the
entire agreement between the parties with respect to the subject matter hereof,
and supersedes all prior agreements, whether oral or written. Unless
otherwise directed, Bank shall release Customer’s identity for the purpose of
permitting direct communication pursuant to the Shareholder Communication
Act. All communications shall be sent to Customer at such address as
Customer shall from time to time direct. This Agreement may be
terminated by either party at any time upon at least 30 days prior written
notice. Notwithstanding anything in this Agreement to the contrary,
Bank shall have no liability for failure to take any action required hereunder
if due to any cause beyond its reasonable control, including without limitation
orders and directions from any court or regulatory authority having jurisdiction
over Bank or Customer.
16. In
case any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any exclusive jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties, except that any
amendment to the Schedule A hereto need be signed only by
Customer. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by either party without the
written consent of the other.
17. Notice. All
notices, demands, and communications required or permitted under this Agreement
will be sent to as specified below at the address set forth for it by hand
delivery, by facsimile, by certified or registered mail, or by Federal Express,
DHL, UPS or any other comparably reputable overnight courier service, in each
case with postage / delivery charges prepaid, as follows:
If to
Millennium India Acquisition Company Inc, to it at:
000 Xxxx
00xx Xxxxxx
Xxxxx
00X
Xxx Xxxx,
Xxx Xxxx 00000
with a
copy to:
Gemini
Fund Services,
Fund
Administrator
000
Xxxxxxxx Xxxx.
000 Xxxx
00xx Xxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
If to
FNBO, to it at:
FIRST
NATIONAL BANK OF OMAHA
0000
Xxxxx Xxxxxx, Xxxx 0000
Xxxxx,
XX 00000-0000
Attention
Xxxx Xxxxxxx
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
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MILLENNIUM
INDIA ACQUISITION
|
FIRST
NATIONAL BANK OF OMAHA
|
|
COMPANY
INC
|
0000
Xxxxx Xxxxxx, Stop 1080
|
|
000
Xxxx 00xx
Xxxxxx, Xxxxx 00X
|
Xxxxx,
XX 00000-0000
|
|
Xxx
Xxxx, XX 00000
|
|
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By:
Name: Xxxxx
Xxxxxx
|
By:
Name: Xxxx
X. Xxxxxxx
|
|
Title: President
|
Title: Senior
Trust Officer
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SCHEDULE
A
FIRST
NATIONAL BANK OF OMAHA/
MILLENNIUM
INDIA ACQUISITION COMPANY INC.
CERTIFICATE
OF AUTHORIZED PERSONS
(The
Fund - Oral and
Written Instructions)
The
undersigned hereby certifies that he is the duly elected and acting Secretary of
Millennium India
Acquisition Company Inc. (the “Fund”), and further certifies that the
following officers or employees of the Fund and/or its
service providers have been duly authorized in conformity with the Fund’s Certificate of
Incorporation and By-Laws to deliver Certificates and Oral Instructions
to First National Bank of Omaha (“Custodian”) pursuant to the Custody Agreement
between the Fund and Custodian
dated ____________, 2008 and that the
signatures appearing opposite their names are true and correct:
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F. Xxxxx Xxxxxxx
Name
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Chairman and Chief Executive Officer – Fund
Title
|
Signature
|
|
Xxxxx Xxxxxx
Name
|
President, Chief Financial Officer, Treasurer and
Secretary - Fund
Title
|
Signature
|
|
Xxxxxxx Xxxxxxxxx
Name
|
Vice President Fund Acctng. - Administrator
Title
|
Signature
|
|
Xxxxx Xxxx
Name
|
Director Administration - Administrator
Title
|
Signature
|
|
Xxxxxxx XxXxxxxxx
Name
|
Manager Fund Accountant - Administrator
Title
|
Signature
|
|
Xxxxx Xxxxxx
Name
|
Supervisor Fund Accountant - Administrator
Title
|
Signature
|
|
Xxxxx Xxxxxx
Name
|
Sr. Vice President - Transfer Agent
Title
|
Signature
|
|
Xxxxx Xxxxxx
Name
|
Control Team Manager - Transfer Agent
Title
|
Signature
|
|
Xxxxxx Xxxxxxx
Name
|
Control Accountant - Transfer Agent
Title
|
Signature
|
|
Xxxxx Xxxxxxxx
Name
|
Control Accountant - Transfer Agent
Title
|
Signature
|
|
Christian Daemon
Name
|
Custody Administrator – Transfer Agent
Title
|
Signature
|
|
Xxx Xxxxxxxxxx
Name
|
Custody Administrator – Transfer Agent
Title
|
Signature
|
This
certificate supersedes any certificate of Authorized Persons you may currently
have on file.
| [seal] |
By:
Xxxxx Xxxxxx,
Secretary
|
Date:
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SCHEDULE
B
FIRST
NATIONAL BANK OF OMAHA (“FNB”)/
MILLENNIUM
INDIA ACQUISITION COMPANY INC
CUSTODY
FEE SCHEDULE
|
1.
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ASSET-BASED
CHARGES
|
Charges
will be based on total Fund assets. There is a monthly minimum of
$250 for each account.
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MARKET VALUE
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ANNUAL RATE
|
|
|
|
||
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0
- $100,000,000
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.0075%.
|
|
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$100,000,000
- $300,000,000
|
.005%
|
|
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Excess
over $300,000,000
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.0025%
|
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2.
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TRANSACTION
CHARGES.
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TRANSACTION
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CHARGE
|
|
|
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DTC/FED
Book Entry Settlement
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$4.00
|
|
|
DTC/FED
Book Entry Free Movement
|
$4.00
|
|
|
Physical
Settlement/Futures/Options
|
$15.00
|
|
|
Mutual
Fund Settlements (NSCC Eligible)
|
$20.00
|
|
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Mutual
Fund Settlements (Not NSCC Eligible)
|
$100.00
|
|
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Principal
Paydowns
|
$4.00
|
|
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Global
Settlement
|
$100.00
|
|
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Wire
Receipts/Disbursements*
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$15.00
|
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FNB
DDA Receipts/Disbursements
|
NA
|
|
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Income
Processing
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NA
|
3.
FEE CAP. Notwithstanding Item 1. above, asset based charges
will be capped at $250 per month provided that custodied property consists only
of (i) physical certificates in SMC Group for which there are no more than four
disbursements or receipts per year, and (ii) cash. This Fee Cap
provision does not effect the fees for transaction charges.
