EXHIBIT 10.9
AMENDMENT
TO
CUSTODY AGREEMENT
THIS AMENDMENT (“Amendment”) is made this the
5th day of February, 2008, and shall modify and amend the
terms of that certain Custody Agreement (the “Custody
Agreement”) dated March 8, 2007, between Triangle
Capital Corporation (“Customer”) and U.S. Bank
National Association (“Custodian”).
RECITALS:
WHEREAS, Custodian presently maintains a custody account
for certain securities and other investments of Customer,
including cash, (the “Custody Account”); and
WHEREAS, Customer and Custodian desire to amend the
existing Custody Agreement.
NOW, THEREFORE, in consideration of the premises and for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally
bound, the parties agree as follows, effective as of the date
hereof:
AMENDMENT:
1. Securities, Cash and Other
Assets. The term “Assets,” as
defined in the Custody Agreement, shall include, without
limitation, (i) common and preferred stocks, bonds,
corporate loans, call options, put options, debentures, notes,
bank certificates of deposit, bankers’ acceptances,
mortgage-backed securities or other loans, 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 (collectively, “Securities”),
(ii) cash, including, without limitation, proceeds from any
issuance of Customer’s common stock, and all payments of
income, payments of principal and capital distributions received
by Customer with respect to the Securities, cash or other Assets
and (iii) any similar property or assets that Custodian has
the facilities to clear and to service. The term
“Securities” shall refer only to original
documentation, and shall not include photocopies or electronic
copies of such documentation.
2. Account. The
“Account,” as defined in the Custody Agreement, shall
carry all Assets of Customer delivered (or caused to be
delivered) by Customer to Custodian at any time during the
period of this Agreement.
3. Instructions from Customer.
i. Customer shall certify or cause to be certified to
Custodian in writing the names and specimen signatures of all
persons authorized to give instructions, notices, or other
communications on behalf of Customer.
ii. Customer may give instruction, notices or other
communication called for by this the Custody Agreement or this
Amendment to Custodian in writing, or by telecopy, telex,
telegram, electronic mail or other type of electronic
communication acceptable to Custodian
(“Instructions”). Unless otherwise expressly provided,
all Instructions shall continue in full force and effect until
canceled or superseded. Customer may give and Custodian may
accept oral instructions on an exception basis; provided,
however, that Customer shall promptly confirm any oral
communications in writing or by telecopy or other means
permitted hereunder. Customer will hold Custodian harmless for
the failure of Customer to send confirmation in writing, the
failure of such confirmation to conform to the telephone
instructions received or Custodian’s failure to produce
such confirmation at any subsequent time. Custodian may
electronically record any instruction given by telephone, and
any other telephone discussions with respect to the Account.
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iii. Custodian may, without liability, rely upon and act in
accordance with any Instruction that Custodian using ordinary
care believes in good faith has been given by Customer.
iv. Custodian may at any time request Instructions from
Customer and may await such Instructions without incurring
liability. Custodian has no obligation to act in the absence of
such requested Instructions, but may, however, without liability
take such action as it deems appropriate to carry out the
purposes of the Custody Agreement and this Amendment.
4. Manner of Holding
Securities. Subject to any Instructions from
Customer, Custodian shall hold or cause to be held all
Securities in the name of either (i) Customer, including
any subsidiaries of Customer, or (ii) Custodian.
5. Actual Collection
Required. Custodian shall not be liable for,
or considered to be the custodian of, any Assets belonging to
Customer or any money represented by a check, draft or other
instrument for the payment of money, until Custodian or its
agents actually receive such Assets. Once Custodian receives any
Assets of Customer, it is at that point deemed to have custody
of such Assets for the benefit of Customer.
6. Custodian Not a Fiduciary. The
parties intend that Custodian shall not be considered a
fiduciary of the Account. Accordingly, Custodian shall have no
power to make decisions regarding any policy, interpretation,
practice or procedure with respect to the Account, but shall
perform the ministerial and administrative functions described
in this Amendment and the Custody Agreement as provided herein
and therein and within the framework of policies,
interpretations, rules, practices and procedures made by
Customer as the same shall be reflected in instructions to
Custodian from Customer.
7. Reporting. Section 2.3 of
the Custody Agreement is hereby replaced in its entirety by the
following language: “Custodian shall furnish Customer, as
part of the services for which Custodian charges its basic fee
hereunder, with periodic Account statements (not less frequently
than monthly) reflecting all Asset transactions in the account
during the reporting period and ending Asset holdings.”
8. Custody Agreement Terms. Except
as expressly modified by this Amendment, the terms and
conditions of the Custody Agreement shall remain in full force
and effect.
9. Counterparts. This Amendment
may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which shall constitute
one and the same Amendment.
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