FIFTH THIRD BANK
CUSTODY SERVICES AGREEMENT
This CUSTODY SERVICES AGREEMENT is made effective as of February, , 2000 by and
between FIFTH THIRD BANK, 00 Xxxxxxxx Xxxxxx Xxxxx, XX #0000X0, Xxxxxxxxxx, Xxxx
("Custodian"), and the undersigned customer Wabash Valley Capital Management
("Customer"). Custodian and Customer hereby agree as follows:
1. Customer has deposited with Custodian the property listed on the receipt(s)
or as indicated on the confirmation supplied by Custodian to Customer in
connection with this Agreement, and may from time to time hereafter deposit
additional property (hereinafter the "Property"), for the purpose of obtaining
from Custodian, the Custody Services ("Services") described in the Custody
Services Schedule.
2. Customer represents and acknowledges that the description of the property
listed on the receipt(s) or confirmation is an accurate description of the
property delivered to Custodian. Securities held by Custodian shall, unless
payable to bearer, be registered in the name of the Custodian for the account of
the Customer or its nominee. Custodian may deposit all or a part of the Property
in the Depository Trust Company, or the Federal Reserve or such other
sub-custodian; (hereinafter collectively known as "Depository") but, Custodian
shall have the same responsibility to Customer regardless of where specific
property is deposited. Custodian may register that portion of the Property that
are securities in the name of a nominee of Custodian or Depository. Custodian
will segregate and identify on its books as belonging to the Customer all
Property held by Custodian or any other entity authorized to hold Property in
accordance with this Agreement.
3. Custodian shall act in the capacity as custodian with respect to the
Property, holding and controlling the Property, and assumes full responsibility
to exercise a commercially reasonable standard of care that it exercises over
its own assets in providing the Services. Custodian shall have no investment
authority, nor any duty or obligation to supervise or advise Customer on any
investments. Under no circumstances will Custodian be liable to Customer or
other person(s) or entity for any loss or expense arising out of this Agreement
other than in connection with any act or failure to act which constitutes
willful, intentional or reckless misconduct.
4. Customer or designated agent will pay Custodian for all fees and expenses
charged for the Services in accordance with the Fee Schedule in effect.
Custodian will perform the Services described, which are generally the
maintenance of a custodial account, in the name of and on behalf of Customer
(the "Account"). Custodian may make changes to Services (including the Fee
Schedule) based upon, but not limited to, technological developments;
legislative, regulatory, third party depository or sub-custodian operational
changes; or the introduction of new services by Custodian. Custodian will notify
Customer of any changes to the Services that will affect Customer at least 30
days prior to the effective date of such changes. The Services shall include
those as normally provided by Custodian in its standard procedures with respect
to safekeeping, trading, deposits, withdrawals, income, corporate actions, puts,
calls, overdrafts, record retention, reports and such other items as Custodian
may offer.
5. Custodian is authorized to rely and act upon the written and manually signed
instructions ("Proper Instruction") of the person(s) identified as having
authority over the Property. Custodian is authorized to rely and act upon Proper
Instructions received from telephone, facsimile transaction or by bank wire
which Custodian believes to be in good faith given by an authorized person or
agent acting on behalf of customer. Custodian is also authorized to rely and act
upon instructions transmitted electronically through the Institutional Delivery
System (IDS), a customer data entry system, or any other similar electronic
instruction system acceptable to the Custodian. Custodian will not be liable for
failures to execute, or failures to receive property due to incorrect,
incomplete, conflicting or untimely instructions. Custodian, in its discretion,
is authorized to accept and act upon orders from Customer, whether given orally
by telephone, or otherwise, which Custodian in good faith believes to be
genuine. Custodian's records will be conclusive as to the content of any such
instruction, whether or not confirmation is received.
6. Custodian will be authorized to take the reasonably necessary steps to
complete a transaction and will be reimbursed for all costs, losses and
liabilities if settlement is not accomplished due to Customer's failure to pay
or deliver the Property for any reason. Custodian is authorized to execute, in
the name of Customer, any certificates of ownership, declarations or other
certificates required under any tax laws or other laws or governmental
regulation now or hereafter in effect. Custodian will have the right to setoff
against the property held by Customer hereunder, and upon any deposit account of
Customer for the following: (i) Compensation, expenses, commitments made by
Custodian upon instructions of Customer or Authorized Agent; (ii) Reimbursement
of taxes incurred by Custodian for Account of Customer; or (iii) Other
liabilities of Customer to Custodian, however created.
7. Custodian will settle trade orders as instructed by the Customer. Custodian
will not be liable or accountable for any act or omission by or for the solvency
of any broker or agent effecting such transaction. Customer will be protected
for such orders under the terms of the broker-dealer's operating agreement.
8. Customer agrees to indemnify, defend and hold Custodian harmless against all
claims, damages, or liabilities from any third party to which Custodian or its
nominee may be subjected by reason of any registration of Securities or other
Property in the name of Custodian or its nominee or otherwise arising out of or
connected with Custodian's Services under this Agreement, except for any claims,
damages or liability arising out of Custodian's intentional, reckless or willful
misconduct.
9. Custodian shall not be liable for any losses, damages or liabilities
resulting from any action taken or omitted, or from any loss or injury resulting
from the Custodian's performance or lack of performance of its duties under this
Agreement in the absence of intentional, reckless or willful misconduct on
Custodian's part. In no event shall Custodian be liable (i) for acting in
accordance with Proper Instructions; (ii) for special, consequential or punitive
damages or lost profits; (iii) for the acts or omissions of its Depositories,
sub-custodians or nominees or agents; or (iv) for holding property involved in
any nationalization, expropriation or other governmental actions, acts of war or
terrorism, insurrection, revolution or national catastrophes or acts of God.
10. Custodian will treat all records and information relating to Customer or the
Account as confidential, except that it may disclose such information after
prior approval of Customer, which will not be unreasonably withheld. Custodian
will be authorized to supply any information regarding the account which is
required by any law or governmental regulation in effect without having received
Customer's prior approval. Customer agrees to review statements and reports
promptly on receipt and inquiries regarding any valuations or other reports must
be submitted within one month of the receipt of the Custodian's statement or
report, and on expiration of this period, statements and reports are considered
correct and agreed to. Express or tacit approval of such statement or report
implies acceptance of the various entries listed therein and approval of any
reservations made by Custodian. Thereafter, Customer assumes the responsibility
to correct any errors.
11. Customer or designated agent will pay Custodian for all fees and expenses
for the Services in accordance with the Fee Schedule in effect and billed or
charged according to the Customer Profile Schedule. Customer will receive at
least 30 days prior notice of any changes in the Fee Schedule. If Customer fails
to pay Custodian for any fees and expenses owed within 30 days after invoice,
Custodian may charge such fees and expenses to any deposit account of Customer
or in the name of Customer. Custodian may also assess late payment fees for
payments past due more than 30 days after invoice.
12. This Agreement will be governed by and construed according to the laws of
the State of Ohio. The Customer or Custodian may terminate this agreement upon
thirty (30) days prior written notice to the other party by registered,
certified or express mail. Custodian will charge fees up to and including the
last day of the billing period in which the effective date of termination
occurs. Notice shall be effective on the date of receipt thereof. This Agreement
may not be amended except by writing signed by both parties.
FIFTH THIRD BANK Wabash Valley Capital Management :
By: By:
------------------------------------ -----------------------------
Xxxxx X. Xxxxxx, President
Its: Its:
------------------------------------ -----------------------------
