Loan Services Addendum
to the Custodian Contract,
dated as of December 17, 1998, between
Liberty-Xxxxx Xxx Advisor Floating Rate Advantage Fund
State Street Bank and Trust Company
In consideration of the mutual agreements contained herein and in the Custodian
Contract, dated as of *[date], between Liberty-Xxxxx Xxx Advisor Floating Rate
Advantage Fund (the "Company") and State Street Bank and Trust Company (the
"Custodian") (the "Custodian Contract"), the receipt and sufficiency of which
are hereby acknowledged, the Company and the Custodian hereby agree as follows
with respect to Loans. Capitalized terms used herein and not defined herein are
used as defined in the Custodian Contract.
1. Safekeeping. All financing documents evidencing the Company's Loans
("Financing Documents") shall be held by the Custodian at its offices in Boston,
Massachusetts.
2. Duties of the Custodian.
a) The Custodian shall accept such Financing Documents as may be
delivered to it from time to time by the Company.
b) If payments with respect to a Loan ("Loan Payment") are not received
by the Custodian on the date on which they are due ("Payment Date") as reflected
in the Payment Schedule (as such term is defined in Section 4(c) below) of the
Loan, or in the case of interest payments, not received either on the interest
payable date (the "Interest Payable Date") of the Loan or in the amount of their
accrued interest payable, the Custodian shall promptly, but in no event later
than two business days after the Payment Date or the Interest Payable Date, give
telephonic notice to the party obligated under the Financing Documents to make
such Loan Payment (the "Obligor") of its failure to make timely payment, and (2)
if such payment is not received within three business days of its due date,
shall notify the Company of such Obligor's failure to make the Loan Payment. The
Custodian shall have no responsibility with respect to the collection of Loan
Payments which are past due, other than the duty to notify the Obligor and the
Company as provided herein.
c) The Custodian shall have no responsibilities or duties whatsoever
under this Addendum or in the Custodian Contract, with respect to Loans or the
Financing Documents, except for such responsibilities as are expressly set forth
herein and in the Custodian Contract. Without limiting the generality of the
foregoing, The Custodian shall have no obligation to preserve any rights against
prior parties or to exercise any right or perform any obligation in connection
with the Loans. In case any question arises as to its duties hereunder, the
Custodian may request instructions from the Company and shall be entitled at all
times to refrain from taking any action unless it has received Proper
Instructions from the Company and the Custodian shall in all events have no
liability, risk or cost for any action taken, with respect to a Loan, pursuant
to and in compliance with the Proper Instructions of such parties.
d) The Custodian shall be only responsible and accountable for Loan
Payments actually received by it and identified as for the account of the
Company; any and all credits and payments credited to the Company, with respect
to Loans, shall be conditional upon clearance and actual receipt by the
Custodian of final payment thereon.
e) The Custodian shall promptly, upon the Company's request, release to
the Company's investment adviser or to any party as the Company may specify, any
Financing Documents being held on behalf of the Company.
3. Responsibilities of the Company. With respect to each Loan held by
the Custodian hereunder in accordance with the provisions hereof, the Company
(a) cause the Financing Documents evidencing such Loan to be delivered to the
Custodian; (b) include with such Financing Documents an amortization schedule of
payments (the "Payment Schedule") identifying the amount and due dates of
scheduled principal payments; (c) cause the Custodian to be named as its nominee
for payment purposes under the Financing Documents or otherwise provide for the
direct payment of the Payments to the Custodian.
4. Instructions; Authority to Act. The certificate of the Secretary or
an Assistant Secretary of the Company, identifying certain individuals to be
officers of the Company or employees of the investment adviser of the Company
authorized to sign any such instructions, may be received and accepted as
conclusive evidence of the incumbency and authority of such to act and may be
considered by the Custodian to be in full force and effect until it receives
written notice to the contrary from the Secretary or Assistant Secretary of the
Company. Notwithstanding any other provision of this Addendum or the Custodian
Contract, the Custodian shall have no responsibility to ensure that any
investment by the Company with respect to Loans has been authorized.
5. Amendment and Termination. This Addendum may be amended by the
Company and the Custodian at any time, but only in writing by an instrument
signed by both parties. This Addendum shall terminate upon the terms provided
for in the Custodian Contract with respect to its termination, or upon the
termination of the Custodian Contract, provided that the Company has the express
right to terminate this Addendum upon 30 days written notification.
6. Attachment. In case any portion of the Loans or the Financing
Documents shall be attached or levied upon pursuant to an order of court, or the
delivery or disbursement thereof shall be stayed or enjoined by an order of
court, or any other order, judgment or decrees shall be made or entered by any
court affecting the property of the Company or any act of the Custodian relating
thereto, the Custodian is hereby expressly authorized in its sole discretion to
obey and comply with all orders, judgments or decrees so entered or issued,
without the necessity of inquire whether such court had jurisdiction, and, in
case the Custodian obeys or complies with any such order, judgment or decree, it
shall not be liable to anyone by reason of such compliance.
7. Parties in Interest; No Third Party Benefit. This Addendum shall be
binding upon and inure to the benefit of the respective successors and assigns
of the parties hereto. This Addendum is not intended for, and shall not be
construed to be intended for, the benefit of any third parties and may not be
relied upon or enforced by any third parties.
8. Notices, etc. All notices, applications and other communications
hereunder shall be in writing and shall be deemed to have been given or made
when delivered by recognized overnight delivery service or sent by telecopy
transmission:
(i) if to the Company c/o Xxxxx Xxx & Xxxxxxx Incorporated, Xxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other address as may have been
furnished to the Custodian in writing by the Company; and
(ii) if to the Custodian, at State Street Bank and Trust Company, 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx Xxxxxxxxxx, Xxxxxx, XX 00000, Telecopy Number
(000) 000-0000, or at such other address as may have been furnished to the
Company by the Custodian in writing, with a copy to State Street Bank and Trust
Company, 0 Xxxxxxxx Xxxxx, XXX0X, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxxxxx, Xx., Telephone Number (000) 000-0000, Telecopy Number
(000) 000-0000.
9. Examination of Securities and Related Documents. Upon reasonable
prior notice to the Custodian, the Board of Managers, the Company's accountants,
attorneys and auditors will be permitted to examine the Financing Documents then
in the physical possession of the Custodian and any records pertaining thereto
during normal business hours.
10. Headings. The headings set forth in this Addendum appear for
convenience only and shall not affect the interpretation of this Addendum.
11. Governing Law. This Addendum shall be construed and enforced in
accordance with, and rights of the parties shall be governed by, the internal
laws of The Commonwealth of Massachusetts.
12. Severability. If any term hereof is determined to be invalid or
unenforceable, such determination shall not affect the remaining terms.
13. Non-Assignability. The rights and obligations of the parties to
this Addendum are non-assignable.
