[LOGO OF CHASE]
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CUSTODY AND FUND ACCOUNTING SERVICES AGREEMENT
AMONG
NUVEEN SENIOR INCOME FUND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
AND
CHASE GLOBAL FUNDS SERVICES COMPANY
October 26, 1999
Table of Contents
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Section Page
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1. Appointment; Intention of the Parties........ 1
2. Definitions.................................. 1
3. Delivery of Documents........................ 3
4. Instructions................................. 4
5. Services Provided; Use of Agents............. 5
6. Fees and Expenses............................ 6
7. Limitation of Liability and Indemnification.. 7
8. Rights over Securities; Set-off.............. 9
9. Fund Representations......................... 9
10. Term......................................... 9
11. Miscellaneous................................ 10
Table of Contents (continued)
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Page
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Schedule A -- Custody and Fund Processing Services Description.. A-1
Schedule B -- Fund Accounting Services Description.............. B-1
Schedule C -- Fees and Expenses................................. C-1
Schedule D -- Additional Funds.................................. D-1
CUSTODY AND FUND ACCOUNTING SERVICES AGREEMENT (this "Agreement")
dated as of October 26, 1999, by and among Nuveen Senior Income Fund, a
Massachusetts business trust (the Nuveen Senior Income Fund, together with any
other fund that may become subject to the terms of this Agreement as provided in
Section 11(m) hereof and as listed on Schedule D hereto, referred to herein as
the "Fund"), Chase Bank of Texas, National Association, a national banking
association ("Chase Texas"), and Chase Global Funds Services Company, a Delaware
corporation ("Chase Boston"; Chase Texas and Chase Boston referred to herein
together as "Chase").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a non-diversified, closed-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to contract with Chase to provide certain
services with respect to the Fund;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed among the parties hereto as follows:
1. Appointment; Intention Of Parties. (a) The Fund hereby appoints Chase
Texas to act as custodian of the Fund's portfolio of loans, securities, cash and
other property and to perform certain loan processing and other services, as
provided in Section 5 of and Schedule A to this Agreement, and appoints Chase
Boston to provide certain fund accounting and related services for the Fund, as
provided in Section 5 of and Schedule B to this Agreement, for the period and on
the terms set forth herein. Chase accepts such appointment and agrees to furnish
the services herein set forth in return for the compensation as provided in
Section 6 of and Schedule C to this Agreement.
(b) This Agreement sets out the terms governing custodial,
settlement, loan tracking, fund accounting and certain other associated services
offered by Chase to the Fund. Chase will be responsible for the performance of
only those duties that are set forth in this Agreement or expressly contained in
Instructions that are consistent with the provisions of this Agreement and with
Chase's operations and procedures. The Fund acknowledges that Chase is not
providing any legal, tax or investment advice in providing the services
hereunder.
2. Definitions.
(a) As used herein, the following terms have the meaning hereinafter
stated.
"Account" has the meaning set forth in Schedule A of this Agreement.
"Affiliate" means an entity controlling, controlled by, or under common
control with, Chase.
"Agent Bank" means the Lender acting on behalf of one or more Lenders for
the purpose of administering and managing a Senior Loan.
"Agreement" has the meaning set forth in the introductory paragraph of this
Agreement.
"Applicable Law" means any statute, whether national, state or local,
applicable in the United States or any other country, the rules of the
treaty establishing the European Community, any other law, rule, regulation
or interpretation of any governmental entity, any applicable common law,
and any decree, injunction, judgment, order, ruling, or writ of any
governmental entity.
"Authorized Person" means any person (including the Investment Adviser or
other agent) who has been designated by written notice from the Fund or its
designated agent to act on behalf of the Fund hereunder. Such persons will
continue to be Authorized Persons until such time as Chase receives
Instructions from the Fund or its designated agent that any such person is
no longer an Authorized Person.
"Business Day" means a day other than Saturday, Sunday or other day on
which commercial banks in Boston and Houston are authorized or required by
law to close.
"Cash Account" has the meaning set forth in Schedule A of this Agreement.
"Chase" has the meaning set forth in the introductory paragraph of this
Agreement.
"Chase Boston" has the meaning set forth in the introductory paragraph of
this Agreement.
"Chase Texas" has the meaning set forth in the introductory paragraph of
this Agreement.
"Corporate Action" means any subscription right, bonus issue, stock
repurchase plan, redemption, exchange, tender offer, or similar matter with
respect to a Financial Asset in the Securities Account or a Senior Loan in
the Loan Account that requires discretionary action by the holder, but does
not include proxy voting.
"Entitlement Holder" means the person named on the records of a Securities
Intermediary as the person having a Securities Entitlement against the
Securities Intermediary.
"Fee Schedule" has the meaning set forth in Section 11(i) hereof.
"Financial Asset" means, as the context requires, either the asset itself
or the means by which a person's claim to it is evidenced, including a
Security, a security certificate, or a Securities Entitlement. "Financial
Asset" does not include cash or Senior Loans.
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"Fund" has the meaning set forth in the introductory paragraph of this
Agreement.
"Indebtedness" has the meaning set forth in Section 8(a) hereof.
"Instructions" has the meaning set forth in Section 4(a) hereof.
"Investment Adviser" means Nuveen Senior Loan Asset Management Inc.
"Lender" means the commercial bank or other financial institution providing
financing under a Senior Loan.
"Liabilities" means any liabilities, losses, claims, costs, damages,
penalties, fines, obligations, or expenses of any kind whatsoever
(including, without limitation, reasonable attorneys', accountants',
consultants' or experts' fees and disbursements).
"Loan Account" means a custody account in the name of the Fund for any and
all Senior Loans received by Chase Texas for the account of the Fund.
"1940 Act" has the meaning set forth in the first recital of this
Agreement.
"1933 Act" has the meaning set forth in section 3(e) hereof.
"Notification" has the meaning set forth in Schedule A of this Agreement.
"SEC" has the meaning set forth in Section 3(d) hereof.
"Securities" means stocks, bonds, rights, warrants and other negotiable and
non-negotiable instruments, whether issued in certificated or
uncertificated form, that are commonly traded or dealt in on securities
exchanges or financial markets. "Securities" also means other obligations
of an issuer, or shares, participations and interests in an issuer
recognized in the country in which it is issued or dealt in as a medium for
investment and any other property as may be acceptable to Chase Texas for
the Securities Account.
"Securities Account" means each Securities custody account on Chase Texas's
records to which Financial Assets are or may be credited pursuant hereto.
"Securities Depository" has the meaning set forth in Schedule A of this
Agreement.
"Securities Entitlement" means the rights and property interest of an
Entitlement Holder with respect to a Financial Asset as set forth in Part 5
of Article 8 of the Uniform Commercial Code of the State of New York, as
the same may be amended from time to time.
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"Securities Intermediary" means Chase Texas, a Securities Depository, and
any other financial institution which in the ordinary course of business
maintains custody accounts for others and acts in that capacity.
"Senior Loans" means U.S. dollar denominated senior secured or unsecured
loans, whose interest rates float or adjust periodically based on a
benchmark interest rate, of borrowers organized or located in the United
States or countries located outside the United States.
(b) All terms in the singular will have the same meaning in the
plural unless the context otherwise provides and visa versa.
3. Delivery of Documents.
The Fund has furnished Chase with copies, properly certified or
authenticated, of the following:
(a) Resolutions of the Board of Trustees of the Fund authorizing the
appointment of Chase Texas as custodian of the Securities, Senior Loans, cash
and other property of the Fund and the appointment of Chase Texas and Chase
Boston to provide certain services to the Fund and approving this Agreement;
(b) Incumbency and signature certificates identifying and containing
the signatures of the Fund's Authorized Persons who are authorized to provide
Instructions with respect to specified matters, including corporate action
determinations, trading directions, pricing issues and net asset value
calculations;
(c) The Fund's Declaration of Trust filed with the Commonwealth of
Massachusetts and all amendments thereto and the Fund's By-Laws and all
amendments thereto;
(d) The Fund's Notification of Registration on Form N-8A under the
1940 Act as filed with the Securities and Exchange Commission ("SEC");
(e) The Fund's most recent registration statement including exhibits
on Form N-2 under the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act, as filed with the SEC;
(f) Copies of the Investment Advisory Agreement between the Fund and
its investment adviser;
(g) The Fund's prospectus(es) and statement(s) of additional
information relating to all funds, series, portfolios and classes, as
applicable, and all amendments and supplements thereto; and
(h) Such other agreements as the Fund may enter into from time to
time including, without limitation, securities lending agreements, futures and
commodities account
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agreements, brokerage agreements and options agreements, auditors' reports and
such opinions of counsel as Chase may reasonably request.
4. Instructions.
(a) Chase is authorized to act under this Agreement (or to refrain
from taking action) in accordance with the instructions received by Chase from
Authorized Persons, via telephone, telex, facsimile transmission, or other
teleprocess or electronic instruction or trade information system acceptable to
Chase ("Instructions"). Chase will have no responsibility for the authenticity
or propriety of any Instructions that Chase believes in good faith to have been
given by Authorized Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions that Chase may specify. The Fund
authorizes Chase to accept and act upon any Instructions received by it without
inquiry. The Fund will indemnify Chase, its officers, directors, agents and
employees, against, and hold each of them harmless from, any Liabilities that
may be imposed on, incurred by, or asserted against Chase, its officers,
directors, agents and employees as a result of any action or omission taken in
accordance with any Instructions or other directions upon which Chase is
authorized to rely under the terms of this Agreement. Unless otherwise expressly
provided, all Instructions will continue in full force and effect until canceled
or superseded.
(b) Chase may (in its sole discretion and without affecting any part
of this Section 4) seek clarification or confirmation of an Instruction from an
Authorized Person and may decline to act upon an Instruction if it does not
receive clarification or confirmation satisfactory to it. Chase will not be
liable for any loss arising from any delay while it seeks such clarification or
confirmation.
(c) In executing or paying a payment order Chase may rely upon the
identifying number (e.g., Fedwire routing number or account) of any party as
instructed in the payment order. The Fund assumes full responsibility for any
inconsistency between the name and identifying number of any party in payment
orders issued to Chase.
(d) Any Instructions delivered to Chase by telephone will promptly
thereafter be confirmed in writing by an Authorized Person. Each confirmation is
to be clearly marked "Confirmation." Chase will not be liable for having
followed such Instructions notwithstanding the failure of an Authorized Person
to send such confirmation in writing or the failure of such confirmation to
conform to the telephone Instructions received. Either party may record any of
their telephonic communications. The Fund will comply with any security
procedures reasonably required by Chase from time to time with respect to
verification of Instructions. The Fund will be responsible for safeguarding any
test keys, identification codes or other security devices that Chase will make
available to the Fund or any Authorized Person.
(e) Chase need not act upon Instructions which it reasonably believes
to be contrary to law, regulation or market practice but will be under no duty
to investigate whether any Instructions comply with Applicable Law or market
practice.
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(f) Chase has established cut-off times for receipt of some
categories of Instruction, which will be made available to the Fund. If Chase
receives an Instruction after its established cut-off time, it will attempt to
act upon the Instruction on the day requested if Chase deems it practicable to
do so or otherwise as soon as practicable after that day.
5. Services Provided; Use Of Agents.
(a) Chase will provide custody, loan processing and fund accounting
services for the Fund. A detailed description of each of the above services is
contained in Schedules A and B, respectively, to this Agreement, which Schedules
are incorporated by reference and made a part of this Agreement.
(b) Chase will maintain records relating to the services provided
hereunder in such form and manner as Chase may deem appropriate or advisable. To
the extent required by Section 31 of the 1940 Act and the rules thereunder,
Chase agrees that all such records prepared or maintained by Chase relating to
the services provided hereunder will be preserved for the periods prescribed
under Rule 31a-2 under the 1940 Act, maintained at the Fund's expense, and
copies of such records shall be made available in accordance with such Section
and rules.
(c) Chase may provide certain of its services under this Agreement
through third parties as agreed to by the Fund. Chase will not be responsible
for any loss as a result of a failure by any broker or any other third party
that it selects and retains using reasonable care to provide ancillary services
that it does not customarily provide itself.
6. Fees and Expenses.
(a) As compensation for the services rendered to the Fund pursuant to
this Agreement the Fund shall pay Chase monthly fees and expenses (including
legal fees) determined as set forth in Schedule C to this Agreement. Such fees
are to be billed monthly and shall be due and payable upon receipt of the
invoice. Except as provided in Schedule C hereto with respect to a termination
prior to October 28, 2000, upon any termination of the provision of services
under this Agreement before the end of any month, the fee for the part of the
month before such termination shall be prorated according to the proportion
which such part bears to the full monthly period and shall be payable upon the
date of such termination.
(b) For the purpose of determining fees calculated as a function of
the Fund's assets, the value of the Fund's assets and net assets shall be
computed as required by its currently effective Prospectus, generally accepted
accounting principles, and resolutions of the Board of Trustees of the Fund.
(c) The Fund may request additional services, additional processing,
additional accounts or special reports, with such specifications, requirements
and documentation as may be reasonably required by Chase. If Chase elects to
provide such services or arrange for their provision, it shall be entitled to
additional fees and expenses as the parties may mutually agree.
(d) Chase will bear its own expenses in connection with the
performance of the services under this Agreement except as provided herein or as
agreed to by the parties. The Fund
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agrees to promptly reimburse Chase for any services, equipment or supplies and
the like ordered by or for the Fund through Chase and for any other expenses
that Chase may incur on the Fund's behalf at the Fund's request or as consented
to by the Fund. Expenses that may be incurred in the operation of the Fund and
that are to be borne by the Fund include, but are not limited to: taxes;
interest; brokerage fees and commissions; salaries and fees of officers,
directors and trustees who are not officers, directors, shareholders or
employees of Chase, or the Fund's investment adviser or distributor; processing
services and related fees; postage, printing and mailing costs; costs of share
certificates; advisory and administration fees; charges and expenses of pricing
and data services, independent public accountants and custodians; insurance
premiums including fidelity bond premiums; legal expenses; consulting fees;
customary bank charges and fees; costs of maintenance of trust existence;
expenses of typesetting and printing of Prospectuses for regulatory purposes and
for distribution to current shareholders of the Fund (the Fund's distributor to
bear the expense of all other printing, production, and distribution of
prospectuses and marketing materials); clearing and processing charges of
clearing corporations; costs of foreign sub-custodians and depositories;
expenses of printing and production costs of shareholders' reports and proxy
statements and materials; expenses of proxy solicitation, proxy tabulation and
annual meetings; costs and expenses of Fund stationery and forms; costs and
expenses of special telephone, customer service, other telephone expenses and
data lines and devices; costs associated with trust, shareholder, and Board
meetings; trade association dues and expenses; reprocessing costs to Chase
caused by third party errors; all expenses for microfilm, microfiche, imaging
and other data and record storage costs; and any extraordinary expenses and
other customary Fund expenses.
(e) All fees, out-of-pocket expenses, or additional charges of Chase
shall be billed on a monthly basis and shall be due and payable upon receipt of
the invoice.
(f) Chase will render, after the close of each month in which
services have been furnished, a statement reflecting all of the charges for such
month. Charges remaining unpaid after thirty (30) days from the statement date
shall bear interest from the date of the statement to the date of payment by the
Fund, at the rate of interest publicly announced from time to time by Chase
Texas as its prime rate (which rate is not intended to be the lowest rate of
interest charged by Chase Texas in connection with extensions of credit) plus
two percent per year, and all costs and expenses of effecting collection of any
such sums, including reasonable attorneys' fees, shall be paid by the Fund to
Chase.
(g) In the event that the Fund is more than sixty (60) days
delinquent in its payments of monthly ▇▇▇▇▇▇▇▇ in connection with this Agreement
(with the exception of specific amounts which may be contested in good faith by
the Fund), this Agreement may be terminated upon ninety (90) days' written
notice to the Fund by Chase. The Fund must notify Chase in writing of any
contested amounts within thirty (30) days of receipt of a billing for such
amounts. Disputed amounts are not due and payable while they are being
investigated.
7. Limitation of Liability and Indemnification. (a) Chase shall use
reasonable care in performing its duties under this Agreement. Chase shall not
be in violation of this Agreement with respect to any matter as to which it has
satisfied its duty of reasonable care.
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(b) Chase shall indemnify the Fund for its direct damages, excluding
attorneys' fees and costs, to the extent they result from Chase's breach of any
representation or warranty set forth in Section 9 hereof or Chase's negligence
or willful misconduct in performing its duties as set out in this Agreement.
Nevertheless, under no circumstances shall Chase be liable for any indirect,
consequential or special damages (including, without limitation, lost profits)
of any form, whether or not foreseeable and regardless of the type of action in
which such a claim may be brought.
(c) Without limiting subsections (a) and (b) above, Chase shall not
be responsible for, and the Fund shall indemnify and hold Chase, its officers,
directors, agents and employees, harmless from and against, any and all
Liabilities incurred by Chase, any of its officers, directors, agents or
employees, in the performance of its/their duties hereunder, including but not
limited to those arising out of or attributable to:
(i) any and all actions of Chase or its officers or agents
required to be taken pursuant to this Agreement;
(ii) the reasonable reliance on or use by Chase or its officers,
directors, employees or agents of information, records or documents
furnished to it or them by or on behalf of the Fund, which are
received by Chase or its officers, directors, employees or agents and
which have been prepared or maintained by the Fund or any third party
on behalf of the Fund;
(iii) the Fund's refusal or failure to comply with the terms of
this Agreement or the Fund's lack of good faith, or its actions or
omissions involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty of the Fund
hereunder;
(v) any delays, inaccuracies, errors in or omissions from
information or data provided to Chase by data, corporate action
services, pricing services, the Fund, the Investment Adviser, any
Lenders, Agent Banks or securities brokers and dealers;
(vi) the offer or sale of shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state, or in violation of any
stop order or other determination or ruling by any federal agency or
any state agency with respect to the offer or sale of such shares in
such state (1) resulting from activities, actions or omissions by the
Fund or its other service providers and agents or (2) existing or
arising out of activities, actions or omissions by or on behalf of the
Fund prior to the effective date of this Agreement;
(vii) any failure of the Fund's registration statement to comply
with the 1933 Act and the 1940 Act (including the rules and
regulations thereunder) and any other applicable laws, or any untrue
statement of a material fact or omission
8
of a material fact necessary to make any statement therein not
misleading in a Fund's prospectuses;
(viii) any actions taken by the Fund, its investment adviser or
its distributor in compliance with, or the failure to so comply with,
applicable securities, tax, commodities and other laws, rules and
regulations; and
(ix) all actions, inactions, omissions, or errors caused by
third parties to whom Chase or the Fund has assigned any rights and/or
delegated any duties under this Agreement at the request of or as
required by the Fund, its investment advisers, its distributor,
administrator or sponsor.
Notwithstanding subsection (a) above, it is expressly understood and
agreed that Chase has no duty or obligation of reasonable care with respect to
any of the activities described in clauses (iii), (iv), (v), (vi), (vii), (viii)
or (ix) of this subsection (c).
8. Rights over Securities; Set-off.
(a) The Fund grants Chase a security interest in and a lien on the
Financial Assets held in the Securities Account and the Senior Loans held in the
Loan Account as security for any and all amounts which are now or become owing
to Chase under any provision of this Agreement, whether or not matured or
contingent ("Indebtedness").
(b) Chase will be further entitled to set any such Indebtedness off
against any cash or deposit account with Chase or any of its Affiliates of which
the Fund is the beneficial owner. Chase will notify the Fund in advance of any
such charge unless Chase reasonably believes that it might prejudice its
interests to do so and, in such event, Chase will notify the Fund promptly
afterwards.
9. Representations. (a) The Fund represents and warrants to Chase that:
(i) the Fund is a business trust, duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts;
(ii) the Fund is authorized to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken to authorize the
Fund to enter into and perform this Agreement;
(iv) the Fund is an investment company properly registered under the
1940 Act;
(v) no legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its duties and
obligations under this Agreement;
(vi) the Fund's registration statements comply in all material
respects with the 1933 Act and the 1940 Act (including the rules and regulations
thereunder) and none of the Fund's
9
prospectuses and/or statements of additional information contain any untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein not misleading; and
(vii) the Fund's execution, delivery and performance of this
Agreement shall not cause a material breach or be in material conflict with any
other agreement or obligation of the Fund or any law or regulation applicable to
it.
(b) Each of Chase Boston and Chase Texas severally represents and
warrants to the Fund that:
(i) it is duly organized and existing under the laws of its
jurisdiction of incorporation;
(ii) it is duly qualified to carry on its business in the
Commonwealth of Massachusetts and the State of Texas, as
applicable;
(iii) it is empowered under applicable laws and by its charter
and by-laws to enter into and perform the services
described in this Agreement;
(iv) all requisite corporate action has been taken to authorize
it to enter into and perform this Agreement;
(v) it has, and will continue to have, access to the
facilities, personnel and equipment required to fully
perform its duties and obligations hereunder;
(vi) no legal or administrative proceedings have been instituted
or threatened against it which would impair its ability to
perform its duties and obligations under this Agreement;
and
(vii) its execution, delivery and performance of this Agreement
shall not cause a material breach or be in material
conflict with any other agreement or obligation of it or
any law or regulation applicable to it.
10. Term. This Agreement shall become effective on the date first
hereinabove written and may be modified or amended from time to time by mutual
agreement between the parties hereto. This Agreement shall continue in effect
unless terminated by either party on ninety (90) days' prior written notice.
Upon termination of this Agreement, the Fund shall pay to Chase such
compensation and any reasonable out-of-pocket or other reimbursable expenses
which may become due or payable under the terms hereof as of the date of
termination or after the date that the provision of services ceases, whichever
is later. If the Fund terminates this Agreement for any reason prior to October
28, 2000, the Fund shall reimburse Chase, in accordance with Schedule C, for any
conversion costs and any start-up costs incurred by Chase that are not the
obligation of the
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Fund under Section 6 of this Agreement. Sections 6 and 7 of this Agreement shall
survive the termination of this Agreement with respect to any obligations of the
parties under this Agreement.
11. Miscellaneous.
(a) Any notice required or permitted hereunder shall be in writing
and shall be deemed effective on the date of personal delivery (by private
messenger, courier service or otherwise) or upon confirmed receipt of telex or
facsimile, whichever occurs first, or upon receipt if by mail to the parties at
the following address (or such other address as a party may specify by notice to
the other):
If to the Fund:
Nuveen Senior Income Fund
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Fund Controller
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Chase Texas:
Chase Bank of Texas, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services - Nuveen
Senior Income Fund
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Chase Boston:
Chase Global Funds Services Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
(c) Chase shall not be responsible or liable for any harm, loss,
expense, liability or damage of any nature suffered by the Fund, its investors,
or other third parties or for any failure or delay in performance of Chase's
obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond Chase's control, including, without
limitation, an act of God, fire, flood, civil or labor disturbance, war, act of
any governmental authority or other act or threat of any authority (de jure or
de facto), legal constraint, fraud or forgery (except to the extent attributable
to the acts of Chase employees or agents), malfunction
11
of equipment or software (except to the extent such malfunction is primarily
attributable to Chase's negligence in maintaining the equipment or software),
failure of or the effect of rules or operations of any external funds transfer
system, inability to obtain or interruption of external communications
facilities, or any cause beyond the reasonable control of Chase. Chase shall use
reasonable efforts to minimize the likelihood of any damage, loss of data,
delays and errors resulting from uncontrollable events, and should such damage,
loss of data, delays or errors occur, Chase shall use its reasonable efforts to
mitigate the effects of such occurrence.
(d) This Agreement may be modified or amended from time to time by
mutual written agreement between the parties. No provision of this Agreement may
be changed, discharged, or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, discharge
or termination is sought.
(e) If any provision of this Agreement is invalid or unenforceable,
the balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
(f) Except as hereunder provided, neither this Agreement nor any
rights or obligations hereunder may be assigned by any party without the written
consent of the other parties, which consent shall not be unreasonably withheld.
This Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns, including by operation of
law. Chase may, with notice to Fund but without its prior consent, assign this
Agreement or its rights or obligations hereunder to any subsidiary or affiliate
of Chase.
(g) Headings are for convenience only and are not intended to affect
interpretation.
(h) This Agreement, including the Schedules, sets out the entire
agreement between the parties in connection with the subject matter, and this
Agreement supersedes any other agreement, statement, or representation relating
to custody, whether oral or written.
(i) Chase will not disclose any confidential information concerning
the Financial Assets, Senior Loans and/or cash held for the Fund except as is
reasonably necessary to provide services to the Fund, as required by law or
regulation or the organizational documents of the issuer of any Financial Asset
or Senior Loan, or with the consent of the Fund. The information contained in
the attached Schedule C entitled Fees and Expenses (the "Fee Schedule") is
confidential and proprietary in nature. By receiving this Agreement, the Fund
agrees that none of its trustees, officers, employees or agents, without the
prior written consent of Chase, will divulge, furnish or make accessible to any
third party, except as required by law or any regulatory authority or as
permitted by the next sentence, any part of the Fee Schedule or information in
connection therewith which has been or may be made available to it. The Fund
agrees that it will limit access to the Fee Schedule and such information to
only those officers or employees with responsibilities for analyzing the
Agreement, to its counsel, to such independent consultants hired expressly for
the purpose of assisting in such analysis, and to governmental agencies. In
addition, the Fund agrees that any person to whom such information is properly
disclosed shall be informed of the confidential nature of the Fee Schedule and
the information
12
relating thereto, and shall be directed to treat the same appropriately. The
terms set forth in this Section 11(i) shall continue for two years after
termination.
(j) Chase will not be required to maintain any insurance coverage for
the benefit of the Fund.
(k) This Agreement may be executed in several counterparts each of
which will be deemed to be an original and together will constitute one and the
same agreement.
(l) THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(m) In the event that ▇▇▇▇ Nuveen & Company Incorporated sponsors
additional closed-end management companies investing in Senior Loans with
respect to which it desires Chase to provide services under the terms of this
Agreement, it shall so notify Chase in writing, and if Chase agrees in writing
to provide such services, such Fund or Funds shall be subject to the terms of
this Agreement and Schedules A , B and C shall be modified accordingly.
(n) The Fund shall not use Chase's name in any offering material,
shareholder report, advertisement or other material relating to the Fund, other
than for the purpose of merely identifying and describing the functions of Chase
hereunder, in a manner not approved by Chase in writing prior to such use;
provided, however, that Chase shall consent to all uses of its name required by
the SEC, any state securities commission, or any federal or state regulatory
authority; and provided, further, that in no case will such approval be
unreasonably withheld.
(o) The Fund's Declaration of Trust is on file with the Secretary of
the Commonwealth of Massachusetts. This Agreement is executed on behalf of the
Fund by the Fund's officers as officers and not individually and the obligations
imposed upon the Fund by this Agreement are not binding upon any of the Fund's
trustees, officers or shareholders individually but are binding only upon the
assets and property of the Fund.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
NUVEEN SENIOR INCOME FUND
By: /s/ ▇▇▇▇ ▇. Berkshire
-----------------------
Name:
---------------------
Title:
--------------------
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Title: V.P.
--------------------
CHASE GLOBAL FUNDS
SERVICES COMPANY
By: /s/ ▇▇▇▇ Shield
-----------------------
Name: ▇▇▇▇ Shield
---------------------
Title: Vice President
--------------------
14
SCHEDULE A
DESCRIPTION OF CUSTODY AND LOAN PROCESSING SERVICES
1. CUSTODY AND ACCOUNTS
1.1 Accounts.
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(a) Chase Texas will establish and maintain the following accounts
("Accounts"):
(i) a Loan Account in the name of the Fund for the Senior Loans
which may be received by Chase Texas for the account of the
Fund;
(ii) a Securities Account in the name of the Fund for Financial
Assets, which may be received by Chase Texas for the account of
the Fund, including as an Entitlement Holder; and
(iii) an account in the name of the Fund ("Cash Account") for any and
all cash received by Chase Texas for the account of the Fund.
(b) At the request of the Fund, additional Accounts may be opened in the
future, which will be subject to the terms of this Agreement, including a
segregated Account or Accounts:
(i) in accordance with the provisions of an agreement among the
Fund and a broker-dealer (registered under the Securities and
Exchange Act of 1934, as amended, and a member of the National
Association of Securities Dealers, Inc.) or any futures
commission merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any
registered contract market), or of any similar organization,
regarding escrow or other arrangements in connection with
transactions by the Fund;
(ii) for the purpose of segregating cash or Financial Assets with
options purchased or sold by the Fund; and
(iii) for any other corporate purposes as per the Instruction of an
Authorized Person.
(c) In connection with opening Accounts at the request of the Fund, Chase
Texas is authorized to enter into demand deposit agreements on behalf of the
Fund.
1.2 Cash Account.
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Except as otherwise provided in Instructions acceptable to Chase
Texas, all cash held in a Cash Account established or maintained by Chase Texas
will be held during the period it is credited to the Accounts in one or more
deposit accounts at Chase Texas in which cash may be
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subject to withdrawal by check or draft. Funds credited to the Cash Account will
be transferred by Chase Texas by means of Instruction ("payment order") from an
Authorized Person to a Chase Texas administrator assigned to the Fund. Payment
orders and Instructions seeking to cancel payment orders or to amend payment
orders which are issued by telephone, telecopier or in writing or payment orders
which are not made in connection with the delivery of a Financial Asset or a
Senior Loan shall be subject to a mutually agreed security procedure (including
call-back procedures) and Chase Texas may execute or pay payment orders issued
in the Fund's name when verified by an Authorized Person in accordance with such
procedure.
1.3 Segregation of Assets; Nominee Name.
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(a) The Fund will deliver or cause to be delivered to Chase Texas all
Securities, Senior Loans, other property and all monies owned by it, including
payments of interest, principal and capital distributions and cash received by
it from the issuance of its shares, at any time during the period of this
Agreement. Chase Texas will not be responsible for such Securities, Senior
Loans, other property and such monies until actually received by it. All cash
delivered to Chase Texas by or on behalf of the Fund will be deposited in the
Cash Account. Chase Texas will deposit in the Loan Account all promissory notes,
assignment agreements, participation certificates and/or agreements or other
evidences of the Fund's interest in the Senior Loans, or copies of the
foregoing, as are delivered to Chase Texas by or upon the order of the Fund.
Chase Texas will identify in its records that Financial Assets credited to the
Fund's Securities Account belong to the Fund (except as otherwise may be agreed
by Chase Texas and the Fund).
(b) Chase Texas is authorized to register in the name of the Fund, Chase
Texas, a Securities Depository, or their respective nominees, such Financial
Assets as are customarily held in registered form or such Financial Assets shall
be properly endorsed and in form for transfer satisfactory to Chase Texas. The
Fund authorizes Chase Texas to hold Financial Assets in omnibus accounts and
will accept delivery of Financial Assets of the same class and denomination as
those deposited with Chase Texas. Senior Loans will remain in the name of the
Fund.
1.4 Settlement of Trades.
---------------------
When Chase Texas receives an Instruction directing settlement of a trade
that includes all information required by Chase Texas (including copies of
executed promissory notes, assignment agreements, participation certificates
and/or agreements, as applicable), with respect to Senior Loans) Chase Texas
will use reasonable care to effect such settlement as instructed. Settlement of
purchases and sales of Financial Assets and Senior Loans will be conducted in
accordance with prevailing standards of the market in which the transaction
occurs. The risk of loss will be the Fund's whenever Chase Texas delivers
Financial Assets, Senior Loans or payment in accordance with applicable market
practice in advance of receipt or settlement of the expected consideration. In
the case of the failure of the Fund's counterparty to deliver the expected
consideration as agreed, Chase Texas will contact the counterparty to seek
settlement, but Chase Texas will not be obligated to institute legal
proceedings, file proof of claim in any insolvency proceeding or take any
similar action.
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1.5 Contractual Settlement Date Accounting.
(a) Should the Fund request to utilize Chase Texas' Contractual Settlement
Date Accounting Service with respect to Financial Assets, Chase Texas will
effect book entries on a "contractual settlement date accounting" basis as
described below with respect to the settlement of trades in those markets where
Chase Texas generally offers contractual settlement day accounting.
(i) Sales: On the settlement date for a sale, Chase Texas will credit
the Cash Account with the sale proceeds of the sale and transfer
the relevant Financial Assets to an account pending settlement of
the trade if not already delivered.
(ii) Purchases: On the settlement date for the purchase (or earlier,
if market practice requires delivery of the purchase price before
the settlement date), Chase Texas will debit the Cash Account
with the settlement monies and credit a separate account. Chase
Texas then will post the Securities Account as awaiting receipt
of the expected Financial Assets. The Fund will not be entitled
to the delivery of Financial Assets that are awaiting receipt
until Chase Texas or its Securities Intermediary actually
receives them.
Chase Texas reserves the right to restrict in good faith the availability of
contractual day settlement accounting for credit reasons.
(b) Chase Texas may (in its absolute discretion) upon oral or written
notification to the Fund reverse any debit or credit made pursuant to this
Section 1.5 prior to a transaction's actual settlement, and the Fund will be
responsible for any costs or liabilities resulting from such reversal. The Fund
acknowledges that the procedures described in this sub-section are of an
administrative nature, and Chase Texas does not undertake to make loans and/or
Financial Assets available to the Fund.
1.6 Actual Settlement Date Accounting.
With respect to any sale or purchase transaction involving Senior Loans and
with respect to any sale or purchase transaction involving Financial Assets that
are not posted to the Account on the contractual settlement date as referred to
in Section 1.5, Chase Texas will post the transaction on the date on which the
cash or Financial Assets or Senior Loans received as consideration for the
transaction are actually received by Chase Texas.
1.7 Use of Depositories.
(a) Chase Texas may deposit Financial Assets with, and hold Financial
Assets in, any securities depository, settlement system, dematerialized book
entry system or similar system (collectively a "Securities Depository") on such
terms as such systems customarily operate and the Fund will provide Chase Texas
with such documentation or acknowledgements that Chase Texas may require to hold
the Financial Assets in such systems. Chase Texas will have no responsibility
for any act or omission by (or the insolvency of) any Securities Depository. In
the event the Fund incurs a loss due to the negligence, willful misconduct, or
insolvency of a Securities
▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ will make reasonable endeavors, in its discretion, to
seek recovery from the Securities Depository.
(b) Chase Texas may execute transactions involving Financial Assets
through a broker which is an Affiliate (i) in the case of the sale of a
fractional interest or (ii) if an Authorized Person directs Chase Texas to use
an affiliated broker or otherwise requests that Chase Texas select a broker for
a transaction. The affiliated broker will charge its customary commission (or
retain its customary spread) with respect to either such transaction.
1.8 Income Collection; Autocredit.
(a) Chase Texas will credit the Cash Account with income and redemption
proceeds on Financial Assets in accordance with the times notified by Chase
Texas from time to time on or after the anticipated payment date, net of any
taxes that are withheld by Chase Texas or any third party. Where no time is
specified for a particular market, income and redemption proceeds from Financial
Assets will be credited only after actual receipt and reconciliation. Chase
Texas may reverse such credits upon oral or written notification to the Fund
that Chase Texas believes that the corresponding payment will not be received by
Chase Texas within a reasonable period or such credit was incorrect.
(b) The Fund will make reasonable endeavors in its discretion to contact
appropriate parties to collect unpaid interest, dividends or redemption
proceeds.
1.9 Fractions/Redemptions by Lot.
Chase Texas may sell fractional interests in Financial Assets and credit
the Cash Account with the proceeds of the sale. If some, but not all, of an
outstanding class of Financial Asset is called for redemption, Chase Texas may
allot the amount redeemed among the respective beneficial holders of such class
of Financial Asset in any manner Chase Texas deems to be fair and equitable.
1.10 Presentation of Coupons; Certain Other Ministerial Acts.
Until Chase Texas receives Instructions to the contrary, Chase Texas will:
(i) present all Financial Assets and Senior Loans for which Chase
Texas has received notice of a call for redemption or that have
otherwise matured, and all income and interest coupons and
other income items that call for payment upon presentation;
(ii) execute in the name of the Fund such certificates as may be
required to obtain payment in respect of Financial Assets and
Senior Loans; and
(iii) exchange interim or temporary documents of title held in the
Securities Account or the Loan Account for definitive documents
of title.
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1.11 Overdrafts.
The Fund will have sufficient immediately available funds each day in the
Cash Account (without regard to any Cash Account investments) to pay for the
settlement of all Financial Assets and Senior Loans delivered against payment to
the Fund and credited to the Securities Account or the Loan Account. If a debit
to the Cash Account results (or will result) in a debit balance, then Chase
Texas may, in its discretion, (i) advance an amount equal to the overdraft, (ii)
reject the settlement in whole or in any part or (iii) if posted to the
Securities Account or Loan Account, reverse the posting of the Financial Assets
or Senior Loans credited to the Securities Account or the Loan Account. If Chase
Texas elects to make such an advance, the advance will be deemed a loan to the
Fund, payable on demand, bearing interest at the rate charged by Chase Texas
from time to time, for overdrafts incurred by funds similar to the Fund, from
the date of such advance to the date of payment (both after as well as before
judgment) and otherwise on the terms on which Chase Texas makes similar
overdrafts available from time to time. No prior action or course of dealing on
Chase Texas' part with respect to the settlement of transactions on the Fund's
behalf will be asserted by the Fund against Chase Texas for Chase Texas' refusal
to make advances to the Cash Account or to settle any transaction for which the
Fund does not have sufficient available funds in the Cash Account.
1.12 Corporate Actions.
(a) Chase Texas will forward Corporate Actions to the Fund and notify the
the Fund of those Corporate Actions of which Chase Texas' central corporate
actions department receives notice from the issuer, the borrower, the Agent
Bank, a Lender or other selling institution or from the Securities Depository in
which such Financial Assets are maintained or notice published in publications
and reported in reporting services routinely used by Chase Texas for this
purpose.
(b) If an Authorized Person fails to provide Chase Texas with timely
Instructions with respect to any Corporate Action, neither Chase Texas nor its
nominees will take any action in relation to that Corporate Action.
1.13 Proxy Voting.
(a) Subject to and upon the terms of this sub-section, Chase Texas will
provide the Fund with information which it receives on matters to be voted upon
at meetings of holders of Financial Assets or Senior Loans ("Notifications"),
and Chase Texas will act in accordance with the Fund's Instructions in relation
to such Notifications. If information is received by Chase Texas at its proxy
voting department too late to permit timely voting by the Fund, Chase Texas'
only obligation is to provide, so far as reasonably practicable, a Notification
(or summary information concerning a Notification) on an "information only"
basis.
(b) Chase Texas will act upon Instructions to vote on matters referred to
in a Notification, provided Instructions are received by Chase Texas at its
proxy voting department by the deadline referred to in the relevant
Notification. If Instructions are not received in a timely manner, Chase Texas
will not be obligated to provide further notice to the Fund.
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(c) The Fund acknowledges that the provision of proxy voting services may
be precluded or restricted under a variety of circumstances. These circumstances
include, but are not limited to: (i) the Financial Assets or Senior Loans being
on loan or out for registration; (ii) the pendency of conversion or another
corporate action; or (iii) Financial Assets or Senior Loans being held at the
Fund's request in a name not subject to the control of Chase Texas, in a margin
or collateral account at Chase Texas or another Chase Texas or broker, or
otherwise in a manner which affects voting, local market regulations or
practices, or restrictions by the issuer.
(d) Notwithstanding the fact that Chase Texas may act in a fiduciary
capacity with respect to the Fund under other agreements or otherwise hereunder,
in performing voting proxy services Chase Texas will be acting solely as the
agent of the Fund, and will not exercise any discretion with regard to such
proxy services or vote any proxy except when directed by an Authorized Person.
1.14 Statements and Information Available On-Line.
(a) Chase Texas will issue statements to the Fund at times mutually agreed
identifying the Financial Assets, Senior Loans and cash in the Accounts. Chase
Texas also will provide additional statements containing this information upon
the Fund's request. Additionally, Chase Texas will send (or make available on-
line to) the Fund an advice or notification of any transfers of cash, Financial
Assets or Senior Loans with respect to the Accounts. Chase Texas will be not be
liable with respect to any matter set forth in those portions of any such
statement (or reasonably implied therefrom) to which the Fund has not given
Chase Texas a written exception or objection within sixty (60) days of receipt
of the statement.
(b) Prices and other information obtained from third parties which may be
contained in any statement sent to the Fund or any other party will have been
obtained from the Fund's independent third-party pricing service, the Investment
Adviser, a Lender or an Agent Bank. Chase Texas does not make any representation
as to the accuracy of such information or that the prices specified necessarily
reflect the proceeds that would be received on a disposal of the relevant
Financial Assets or Senior Loans. References in this Agreement to statements
include any statements in electronic form.
(c) The Fund acknowledges that records and unaudited reports available to
it on-line will be unaudited and may not be accurate due to inaccurate pricing,
delays in updating Account records and other causes. Chase Texas will not be
liable for any loss or damage arising out of the inaccuracy of any such records
or unaudited reports accessed on-line.
1.15 Access to Chase Texas' Records.
Chase Texas will allow the Fund's independent public accountants such
reasonable access to the records of Chase Texas relating to Financial Assets and
Senior Loans as is required in connection with their examination of books and
records pertaining to the Fund's affairs.
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1.16 Taxation.
(a) The Fund confirms that Chase Texas is authorized to deduct from any
cash received or credited to the Cash Account any taxes or levies required by
any revenue or governmental authority for whatever reason in respect of the
Fund's Accounts.
(b) The Fund will provide to Chase Texas such certifications,
documentation, and information as it may require in connection with taxation,
and warrants that, when given, this information is true and correct in every
respect, not misleading in any way, and contains all material information. The
Fund undertakes to notify Chase Texas immediately if any information requires
updating or correcting.
(c) The Fund will be responsible for the payment of all taxes relating to
the Financial Assets in the Securities Account or the Senior Loans in the Loan
Account, and the Fund will pay, indemnify and hold Chase Texas harmless from and
against any and all liabilities, penalties, interest or additions to tax with
respect to or resulting from, any delay in, or failure by, Chase Texas to pay,
withhold or report any U.S. federal, state or local taxes or foreign taxes
imposed or to report interest, dividend or other income paid or credited to the
Cash Account, whether such failure or delay by Chase Texas to pay, withhold or
report tax or income is the result of (i) the Fund's failure to comply with the
terms of this paragraph or (ii) Chase Texas' own acts or omissions; provided
however, the Fund will not be liable to Chase Texas for any penalty or additions
to tax due as a result of Chase Texas' failure to pay or withhold tax or to
report interest, dividend or other income paid or credited to the Cash Account
solely as a result of Chase Texas' negligence.
2. LOAN PROCESSING
(a) Chase Texas will enter information with respect to the interest rate,
amortization schedule, maturity date and related information for each Senior
Loan into the "Wall Street Office" software program of Financial Computer
Software, L.P. ("WSO") selected by the Fund;
(b) The Fund will not make any changes to the WSO software program without
the approval of Chase Texas;
(c) Chase Texas will make adjustments on each Business Day to WSO to
account for principal and interest payments received on the Senior Loans and
interest rate resettings;
(d) The Fund will forward all notices received from the Investment
Adviser, a Lender or an Agent Bank with respect to the Senior Loans to Chase
Texas;
(e) Chase Texas will coordinate funding requests with the Fund in response
to Lender or Agent Bank notices pertaining to additional borrowings;
(f) Chase Texas will prepare an electronic extract of data from the WSO
database on each Business Day and deliver a copy of same to the Fund;
(g) The Fund will provide Chase Texas with written confirmation of all
pricing data on each Business Day. Chase Texas (utilizing the WSO accounting
package provided to Chase Texas
A-7
by the Fund, and after receipt by Chase Texas of written confirmation of pricing
data from the Fund) will provide Chase Boston with information reasonably
requested by Chase Boston to enable Chase Boston to perform net asset value
calculations with respect to the loans on each Business Day; and
(h) Chase Texas will reconcile purchases and sales of Senior Loans and
Financial Assets with the Investment Adviser on each Business Day.
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SCHEDULE B
DESCRIPTION OF FUND ACCOUNTING SERVICES
Chase Boston shall provide the following accounting services to the Fund:
A. Maintenance of the books and records for the Fund's assets, including
records of all securities transactions.
B. Calculation of each Fund's, portfolios' or classes' net asset value in
accordance with the Prospectus and after receipt of written
confirmation of all pricing data from the Fund, and after the fund,
portfolio or class meets eligibility requirements, transmission to
NASDAQ and to such other entities as directed by the Fund.*
C. Accounting for dividends and interest received and distributions made
by the Fund.
D. Coordination with the Fund's independent auditors with respect to the
annual audit, and as otherwise requested by the Fund.
E. As mutually agreed upon, domestic and/or international reports.
*Prices and other information obtained from third parties which may be contained
in any statement sent to the Fund or any other party will have been obtained
from the Fund's independent third-party pricing service, the Investment Adviser,
a Lender or an Agent Bank. Chase Boston does not make any representation as to
the accuracy of such information or that the prices specified necessarily
reflect the proceeds that would be received on a disposal of the relevant
Financial Assets or Senior Loans. References in the Agreement to statements
include any statements in electronic form.
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SCHEDULE C
FEES AND EXPENSES
SCHEDULE D
ADDITIONAL FUNDS