EX-99.g.
▇▇ ▇▇▇▇▇▇
GLOBAL CUSTODY AGREEMENT
BETWEEN
[THE CUSTOMER]
AND
JPMORGAN CHASE BANK, N.A.
December 2006
Table of contents
1. Intention of the Parties; Definitions 2
1.1 Intention of the Parties 2
1.2 Definitions 2
2. What the Bank is Required to Do 4
2.1 Set Up Accounts 4
2.2 Cash Account 5
2.3 Segregation of Assets; Nominee Name 6
2.4 Settlement of Transactions 6
2.5 Contractual Settlement Date Accounting 7
2.6 Actual Settlement Date Accounting 7
2.7 Income Collection (AutoCredit(R)) 8
2.8 Miscellaneous Administrative Duties 8
2.9 Corporate Actions 9
2.10 Class Action Litigation 9
2.11 Proxies 9
2.12 Statements of Account 10
2.13 Access to Bank's Records 10
2.14 Maintenance of Financial Assets at Subcustodian Locations 11
2.15 Tax Relief Services 11
2.16 Foreign Exchange Transactions 11
2.17 Notifications 12
3. Instructions 12
3.1 Acting on Instructions; Method of Instruction and Unclear Instructions 12
3.2 Verification and Security Procedures 12
3.3 Instructions; Contrary to Law/Market Practice 13
3.4 Cut-Off Times 13
3.5 Electronic Access 13
4. Fees, Expenses and Other Amounts Owing to the Bank 13
4.1 Fees and Expenses 13
4.2 Overdrafts 13
4.3 Bank's Right Over Securities; Set-off 14
5. Subcustodians, Securities Depositories, And Other Agents 14
5.1 Appointment of Subcustodians; Use of Securities Depositories 14
5.2 Liability for Subcustodians 14
6. ADDITIONAL PROVISIONS RELATING TO CUSTOMER 14
6.1 Representations of Customer and Bank 14
6.2 Customer is Liable to Bank Even if it is Acting for Another Person 14
7. WHEN BANK IS LIABLE TO CUSTOMER 14
7.1 Standard of Care; Liability 14
7.2 Force Majeure 14
7.3 Bank May Consult With Counsel 14
7.4 Bank Provides Diverse Financial Services and May Generate Profits as a Result 14
7.5 Assets Held Outside Bank's Control 14
7.6 Ancillary services 14
8. TAXATION 14
8.1 Tax Obligations 14
8.2 Tax Relief Services 14
9. TERMINATION 14
9.1 Termination 14
9.2 Exit Procedure 14
10. MISCELLANEOUS 14
10.1 Notifications 14
10.2 Successors and Assigns 14
10.3 Interpretation 14
10.4 Entire Agreement 14
10.5 Information Concerning Deposits at Bank's London Branch 14
10.6 Insurance 14
10.7 Security Holding Disclosure 14
10.8 USA PATRIOT Act Disclosure 14
10.9 Governing Law and Jurisdiction 14
10.10 Severability; Waiver; and Survival 14
10.11 Confidentiality 14
10.12 Counterparts 14
10.13 No Third Party Beneficiaries 14
SCHEDULE 1 List of Subcustodians and Markets Used by the Bank 14
SCHEDULE 2 Persons Authorized To Give Instructions 14
SCHEDULE 3 Authorized Fund Managers/Advisers 14
SCHEDULE 4 Form of Board Resolution 14
SCHEDULE 5 Electronic Access 14
GLOBAL CUSTODY AGREEMENT
This Agreement, dated ____________________, 200__, is between JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION ("Bank"), with a place of business at
________________________ ________________; and _____________________
("Customer") with a place of business at __________________.
1. INTENTION OF THE PARTIES; DEFINITIONS
1.1 Intention of the Parties
(a) This Agreement sets out the terms on which Bank will be providing
custodial, settlement and other associated services to the
Customer. Bank will be responsible for the performance of only
those duties set forth in this Agreement.
(b) Investing in Financial Assets and cash in foreign jurisdictions
may involve risks of loss or other special features. The Customer
acknowledges that Bank is not providing any legal, tax or
investment advice in providing the services under this Agreement
and will not be liable for any losses resulting from Country
Risk.
1.2 Definitions
As used herein, the following terms have the meaning hereinafter
stated.
"Account" has the meaning set forth in Section 2.1 of this Agreement.
"Affiliate" means an entity controlling, controlled by, or under
common control with, Bank.
"Affiliated Subcustodian" means a Subcustodian that is an Affiliate.
"Applicable Law" means any applicable statute, treaty, rule,
regulation or common law and any applicable decree, injunction,
judgement, order, formal interpretation or ruling issued by a court or
governmental entity.
"Authorized Person" means any person who has been designated by
written notice from the Customer in the form of Schedules 2 or 3 as
the case may be (or by written notice in the form of Appendix A from
any agent designated by the Customer, including, without limitation,
an investment manager) to act on behalf of the Customer under this
Agreement. Such persons will continue to be Authorized Persons until
such time as Bank receives and has had reasonable time to act upon
Instructions from the Customer (or its agent) that any such person is
no longer an Authorized Person.
"Bank Indemnitees" means Bank, its Subcustodians, and their respective
nominees, directors, officers, employees and agents.
"Bank's London Branch" means the London branch office of JPMorgan
Chase Bank, N.A.
"Cash Account" has the meaning set forth in Section 2.1(a)(ii).
"Confidential Information" means and includes all non public
information concerning the Customer or the Accounts which the Bank
receives in the course of providing services under this Agreement.
Nevertheless, the term Confidential Information shall not include
information which is or becomes available to the general public by
means other than the Bank's breach of the terms of this Agreement or
information which the Bank obtains on a non confidential basis from a
person who is not known to be subject to any obligation of confidence
to any person with respect to that information.
"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 that
require discretionary action by the beneficial owner of the security,
but does not include rights with respect to class action litigation or
proxy voting.
"Country Risk" means the risk of investing or holding assets in a
particular country or market, including, but not limited to, risks
arising from nationalization, expropriation or other governmental
actions; the country's financial infrastructure, including prevailing
custody, tax and settlement practices; laws applicable to the
safekeeping and recovery of Financial Assets and cash held in custody;
the regulation of the banking and securities industries, including
changes in market rules; currency restrictions, devaluations or
fluctuations; and market conditions affecting the orderly execution of
securities transactions or the value of assets.
"Entitlement Holder" means the person named on the records of a
Securities Intermediary as the person having a Securities Entitlement
against the Securities Intermediary.
"Financial Asset" means a Security and refers, as the context
requires, either to the asset itself or to 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.
"Instructions" means an instruction that has been verified in
accordance with a Security Procedure or, if no Security Procedure is
applicable, which Bank believes in good faith to have been given by an
Authorised Person in the manner specified next to their name in the
relevant Schedule.
"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).
"Securities" means shares, stocks, debentures, bonds, notes or other
like obligations, whether issued in certificated or uncertificated
form, and any certificates, receipts, warrants or other instruments
representing rights to receive, purchase or subscribe for the same
that are commonly traded or dealt in on securities exchanges or
financial markets or other obligations of an issuer, or shares,
participations and interests in an issuer recognised 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 Bank for the Securities
Account.
"Securities Account" means each Securities custody account on Bank's
records to which Financial Assets are or may be credited under this
Agreement.
"Securities Depository" means any securities depository,
dematerialized book entry system or similar system.
"Securities Entitlement" means the rights and property interests 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.
"Securities Intermediary" means Bank, a Subcustodian, a Securities
Depository, and any other financial institution which in the ordinary
course of business maintains Securities custody accounts for others
and acts in that capacity.
"Security Procedure" has the meaning set forth in Section 3.2(a).
"Subcustodian" means any of the subcustodians appointed by Bank from
time to time to hold Securities and act on its behalf in different
jurisdictions (and being at the date of this Agreement the entities
listed in Schedule 1) and includes any Affiliated Subcustodian.
All terms in the singular will have the same meaning in the plural
unless the context otherwise provides and visa versa.
2. WHAT THE BANK IS REQUIRED TO DO
2.1 Set Up Accounts
(a) Bank will establish and maintain the following accounts
("Accounts"):
(i) one or more Securities Accounts in the name of Customer
(or in another name requested by the Customer that is
acceptable to Bank) for Financial Assets, which may be
held by Bank or its Subcustodian or a Securities
Depository for Bank on behalf of the Customer,
including as an Entitlement Holder; and
(ii) one or more accounts in the name of Customer (or in
another name requested by the Customer that is
acceptable to Bank) ("Cash Account") for any and all
cash in any currency received by or on behalf of Bank
for the account of Customer.
Notwithstanding paragraph (ii), cash held in respect of
those markets where Customer is required to have a cash
account in its own name held directly with the relevant
Subcustodian or Securities Depository will be held in that
manner and will not be part of the Cash Account.
(b) At the request of Customer, additional Accounts may be
opened in the future, which will be subject to the terms of
this Agreement.
(c) Bank's obligation to open Accounts pursuant to Section
2.1(a) is conditional upon Bank receiving such of the
following documents as Bank may require:
(i) a certified copy of the Customer's constitutional
documents as currently in force;
(ii) a certified copy of a resolution of the Customer's
board of directors or equivalent governing body,
substantially in the form set out in Schedule 4;
(iii) Bank's standard form fund manager mandate (in the form
set out in Appendix A), completed by any persons
designated in Schedule 3; and
(iv) in the case of any Account opened in a name not that of
the Customer, documentation with respect to that name
similar to that set forth in sub-sections (i) - (iii).
2.2 Cash Account
(a) Any amount standing to the credit of the Cash Account is a
debt due from Bank to Customer as banker. Except as
otherwise provided in Instructions acceptable to Bank, all
cash held in the Cash Account will be deposited during the
period it is credited to the Accounts in one or more deposit
accounts at Bank or at Bank's London Branch. Any cash so
deposited with Bank's London Branch will be payable
exclusively by Bank's London Branch in the applicable
currency, subject to compliance with Applicable Law,
including, without limitation, any restrictions on
transactions in the applicable currency imposed by the
country of the applicable currency.
(b) Any amounts credited by Bank to the Cash Account on the
basis of a notice or an interim credit from a third party,
may be reversed if Bank does not receive final payment in a
timely manner. Bank will notify the Customer promptly of any
such reversal.
2.3 Segregation of Assets; Nominee Name
(a) Bank will identify in its books that Financial Assets
credited to Customer's Securities Account belong to Customer
(except as otherwise may be agreed by Bank and Customer).
(b) To the extent permitted by Applicable Law or market
practice, Bank will require each Subcustodian to identify in
its own books that Financial Assets held at such
Subcustodian by Bank on behalf of its customers belong to
customers of Bank, such that it is readily apparent that the
Financial Assets do not belong to Bank or the Subcustodian.
(c) Bank is authorized, in its discretion,
(i) to hold in bearer form, such Financial Assets as are
customarily held in bearer form or are delivered to
Bank or its Subcustodian in bearer form;
(ii) to hold Securities in or deposit Securities with any
Securities Depository;
(iii) to hold Securities in omnibus accounts on a fungible
basis and to accept delivery of Securities of the same
class and denomination as those deposited with Bank or
its Subcustodian; and
(iv) to register in the name of Customer, Bank, a
Subcustodian, a Securities Depository, or their
respective nominees, such Financial Assets as are
customarily held in registered form.
2.4 Settlement of Transactions
Subject to Article 3 and Section 4.2 of this Agreement, Bank will act
in accordance with Instructions with respect to settlement of
transactions. Settlement will be conducted in accordance with
prevailing standards of the market in which the transaction occurs.
Without limiting the generality of the foregoing, Customer authorizes
Bank to deliver Securities or payment in accordance with applicable
market practice in advance of receipt or settlement of consideration
expected in connection with such delivery or payment, and Customer
acknowledges and agrees that such action alone will not of itself
constitute negligence, fraud, or willful misconduct of Bank, and the
risk of loss arising from any such action will be borne by Customer.
In the case of the failure of Customer's counterparty (or other
appropriate party) to deliver the expected consideration as agreed,
Bank will contact the counterparty to seek settlement and will notify
the Customer of such failure.
2.5 Contractual Settlement Date Accounting
(a) Bank will effect book entries on a contractual settlement
date accounting basis as described below with respect to the
settlement of transactions in those markets where Bank
generally offers contractual settlement date accounting.
(i) Sales: On the settlement date for a sale, Bank will
credit the Cash Account with the proceeds of the sale
and transfer the relevant Financial Assets to an
account at Bank pending settlement of the transaction
where 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), Bank will
debit the Cash Account for the settlement amount and
credit a separate account at Bank. Bank then will post
the Securities Account as awaiting receipt of the
expected Financial Assets. Customer will not be
entitled to the delivery of Financial Assets that are
awaiting receipt until Bank or a Subcustodian actually
receives them.
Upon request, Bank shall provide the Customer with a list of
those markets for which it provides contractual settlement
date accounting. Bank may add markets to or remove markets
from this list upon notice to the Customer that is
reasonable in the circumstances.
(b) Bank may reverse any debit or credit made pursuant to
Section 2.5(a) prior to a transaction's actual settlement
upon notice to the Customer in cases where Bank reasonably
believes that the transaction will not settle in the
ordinary course within a reasonable time. The Customer will
be responsible for any costs or liabilities resulting from
such reversal. The Customer acknowledges that the procedures
described in Section 2.5 are of an administrative nature,
and Bank does not undertake to make loans and/or Financial
Assets available to Customer.
2.6 Actual Settlement Date Accounting
With respect to settlement of a transaction that is not posted to the
Account on the contractual settlement date as referred to in Section
2.5, Bank will post the transaction on the date on which the cash or
Financial Assets received as consideration for the transaction is
actually received and cleared by Bank.
2.7 Income Collection (AutoCredit(R))
(a) Bank will monitor information publicly available in the
applicable market about forthcoming income payments on the
Financial Assets, and will promptly notify the Customer of
such information.
(b) Bank will credit the Cash Account with income proceeds on
Financial Assets on the anticipated payment date, net of any
taxes that are withheld by Bank or any third party
("AutoCredit") in those markets where Bank customarily
provides an AutoCredit service. Upon request, Bank shall
provide the Customer with a list of AutoCredit eligible
markets. Bank may add markets to or remove markets from the
list of AutoCredit markets upon notice to the Customer that
is reasonable in the circumstances. Bank may reverse
AutoCredit credits upon oral or written notification to the
Customer if Bank believes that the corresponding payment
will not be received by Bank within a reasonable period or
the credit was incorrect.
(c) In markets where Bank does not provide an AutoCredit
service, income on Financial Assets (net of any taxes
withheld by Bank or any third party) will be credited only
after actual receipt and reconciliation.
(d) Bank will use reasonable efforts to contact appropriate
parties to collect unpaid interest, dividends or redemption
proceeds and notify the Customer of the late payment.
2.8 Miscellaneous Administrative Duties
(a) Until Bank receives Instructions to the contrary, Bank will:
(i) present all Financial Assets for which Bank 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 Customer such certificates as
may be required to obtain payment in respect of
Financial Assets; and
(iii) exchange interim or temporary documents of title held
in the Securities Account for definitive documents of
title.
(b) In the event that, as a result of holding of Financial
Assets in an omnibus account, Customer receives fractional
interests in Financial Assets arising out of a Corporate
Action or class action litigation, Bank will credit Customer
with the amount of cash it would have received had the
Financial Assets not been held in an omnibus account, and
Customer shall relinquish to Bank its interest in such
fractional interests.
(c) If some, but not all, of an outstanding class of Financial
Assets is called for redemption, Bank may allot the amount
redeemed among the respective beneficial holders of such a
class of Financial Assets on a pro rata basis or in a
similar manner Bank deems fair and equitable.
2.9 Corporate Actions
(a) Bank will act in accordance with local market practice to
obtain information concerning Corporate Actions that is
publicly available in the local market. Bank also will
review information obtained from sources to which it
subscribes for information concerning such Corporate
Actions. Bank will promptly provide that information (or
summaries that accurately reflect the material points
concerning the applicable Corporate Action) to Customer or
its Authorized Person.
(b) Bank will act in accordance with the Customer's Instructions
in relation to such Corporate Actions. If the Customer fails
to provide Bank with timely Instructions with respect to any
Corporate Action, neither Bank nor its Subcustodians or
their respective nominees will take any action in relation
to that Corporate Action, except as otherwise agreed in
writing by Bank and the Customer or as may be set forth by
Bank as a default action in the notification it provides
under Section 2.9(a) with respect to that Corporate Action.
2.10 Class Action Litigation
Any notices received by Bank's corporate actions department about
settled securities class action litigation that requires action by
affected owners of the underlying Financial Assets will be promptly
notified to Customer if Bank, using reasonable care and diligence in
the circumstances, identifies that Customer was a shareholder and held
the relevant Financial Assets in custody with Bank at the relevant
time.
2.11 Proxies
(a) Bank will monitor information distributed to holders of
Financial Assets about upcoming shareholder meetings,
promptly notify the Customer of such information and,
subject to Section 2.11(c), act in accordance with the
Customer's Instructions in relation to such meetings ("the
Proxy Voting Service").
(b) The Proxy Voting Service is available only in certain
markets, details of which are available from Bank on
request. Provision of the Proxy Voting Service is
conditional upon receipt by Bank of a duly completed
enrolment form as well as additional documentation that may
be required for certain markets.
(c) The Proxy Voting Service does not include physical
attendance at shareholder meetings. Requests for physical
attendance at shareholder meetings can be made but they will
be evaluated and agreed to by Bank on a case by case basis.
(d) Customer acknowledges that the provision of the Proxy Voting
Service may be precluded or restricted under a variety of
circumstances. These circumstances include, but are not
limited to:
(i) the Financial Assets being on loan or out for
registration;
(ii) the pendency of conversion or another corporate action;
(iii) the Financial Assets being held in a margin or
collateral account at Bank or another bank or broker,
or otherwise in a manner which affects voting;
(iv) local market regulations or practices, or restrictions
by the issuer; and
(v) Bank being required to vote all shares held for a
particular issue for all of Bank's customers on a net
basis (i.e. a net yes or no vote based on voting
instructions received from all its customers). Where
this is the case, Bank will inform Customer by means of
the Notification.
2.12 Statements of Account
(a) Bank will provide Customer with a statement of account for
each Account, identifying cash and Financial Assets held in
the Account and any transfers to and from the Account. If
agreed by the parties, statements of account will be
accessed by the Customer on-line. Otherwise, statements will
be sent to Customer at times to be mutually agreed by the
parties. Customer will review its statement of account and
give Bank written notice of any suspected error or omission
within a reasonable time of the date of the relevant
suspected error or omission.
(b) Customer acknowledges that information available to it
on-line with respect to transactions posted after the close
of the prior business day may not be accurate due to
mis-postings, delays in updating Account records, and other
causes. Bank will not be liable for any loss or damage
arising out of the inaccuracy of any such information
accessed on-line.
2.13 Access to Bank's Records
(a) Bank will allow Customer's auditors and independent public
accountants such reasonable access to the records of Bank
relating to Financial Assets as is required in connection
with their examination of books and records pertaining to
Customer's affairs. Subject to restrictions under the
relevant local law, Bank also will obtain an undertaking to
permit Customer's auditors and independent public
accountants, reasonable access to the records of any
Subcustodian of Financial Assets held in the Securities
Account as may be required in connection with such
examination.
(b) Bank will, upon reasonable written notice, allow Customer
reasonable access during normal working hours to the records
of Bank relating to the Accounts. Bank may impose reasonable
restrictions on the number of individuals allowed access,
the frequency and length of such access, and the scope of
the records made available. The Customer shall reimburse
Bank for the cost of copying, collating and researching
archived information at Bank's regular hourly rate.
2.14 Maintenance of Financial Assets at Subcustodian Locations
Unless Instructions require another location acceptable to Bank,
Financial Assets will be held in the country or jurisdiction in which
their principal trading market is located, where such Financial Assets
may be presented for payment, where such Financial Assets were
acquired, or where such Financial Assets are held. Bank reserves the
right to refuse to accept delivery of Financial Assets or cash in
countries and jurisdictions other than those referred to in Schedule 1
to this Agreement, as in effect from time to time.
2.15 Tax Relief Services
Bank will provide tax relief services as provided in Section 8.2.
2.16 Foreign Exchange Transactions
To facilitate the administration of Customer's trading and investment
activity, Bank may, but will not be obliged to, enter into spot or
forward foreign exchange contracts with Customer, or an Authorized
Person, and may also provide foreign exchange contracts and facilities
through its Affiliates or Subcustodians. Instructions, including
standing Instructions, may be issued with respect to such contracts,
but Bank may establish rules or limitations concerning any foreign
exchange facility made available. In all cases where Bank, its
Affiliates or Subcustodians enter into a master foreign exchange
contract that covers foreign exchange transactions for the Accounts,
the terms and conditions of that foreign exchange contract and, to the
extent not inconsistent, this Agreement, will apply to such
transactions.
2.17 Notifications
If Customer has agreed to access information concerning the Accounts
through Bank's website, Bank may make any notifications required under
this Agreement by posting it on the website.
3. INSTRUCTIONS
3.1 Acting on Instructions; Method of Instruction and Unclear
Instructions
(a) Customer authorizes Bank to accept and act upon any
Instructions received by it without inquiry. Customer will
indemnify Bank Indemnitees against, and hold each of them
harmless from, any Liabilities that may be imposed on,
incurred by, or asserted against Bank Indemnitees as a
result of any action or omission taken in accordance with
any Instruction.
(b) Customer will where reasonably practicable use automated and
electronic methods of sending Instructions.
(c) Bank shall promptly notify an Authorized Person if Bank
determines that an Instruction does not contain all
information reasonably necessary for Bank to carry out the
Instruction. Bank will not be liable for any loss arising
from any reasonable delay in carrying out any such
Instruction pending receipt of such missing information,
clarification or confirmation.
3.2 Verification and Security Procedures
(a) Bank and Customer shall from time to time agree upon
security procedures to be followed by Customer upon the
issuance of an instruction and/or by Bank upon the receipt
of an instruction, so as to enable Bank to verify that such
instruction is authorized ("Security Procedures"). A
Security Procedure may, without limitation, involve the use
of algorithms, codes, passwords, encryption and telephone
call backs. The Customer acknowledges that Security
Procedures are designed to verify the authenticity of, and
not detect errors in, instructions. For the avoidance of
doubt, the parties agree that a SWIFT message issued in the
name of the Customer through any third party utility agreed
upon by the parties as being a method for providing
Instructions and authenticated in accordance with that
utility's customary procedures, shall be deemed to be an
authorised Instruction.
(b) Bank and Customer shall ensure that any codes, passwords or
similar devices are reasonably safeguarded.
(c) Either party may record any of their telephone
communications.
3.3 Instructions; Contrary to Law/Market Practice Bank need not act
upon Instructions which it reasonably believes to be contrary to law,
regulation or market practice, but Bank will be under no duty to
investigate whether any Instructions comply with Applicable Law or
market practice.
3.4 Cut-Off Times
Bank has established cut-off times for receipt of Instructions, which
will be made available to Customer. If Bank receives an Instruction
after its established cut-off time, Bank will attempt to act upon the
Instruction on the day requested if Bank deems it practicable to do so
or otherwise as soon as practicable after that day.
3.5 Electronic Access
Access by Customer to certain applications or products of Bank via
Bank's web site or otherwise shall be governed by this Agreement and
the terms and conditions set forth in Schedule 5.
4. FEES, EXPENSES AND OTHER AMOUNTS OWING TO BANK
4.1 Fees and Expenses
Customer will pay Bank for its services under this Agreement such fees
as may be agreed upon in writing from time to time, together with
Bank's reasonable out-of-pocket or incidental expenses, including, but
not limited to, legal fees and tax or related fees incidental to
processing charged directly or indirectly by governmental authorities,
issuers, or their agents. The Bank will invoice the Customer for
amounts owing to it and such amounts will be payable within thirty
(30) days of the invoice. The Bank will be entitled to deduct amounts
owing to it from the Cash Account if the Customer has not objected to
the invoice within thirty (30) days of the date of the invoice (or
such other period as the parties may agree in writing). If the
Customer disputes an invoice it shall nevertheless pay, or allow the
Bank to deduct, such portion of the invoice that is not subject to a
bona fide dispute. Without prejudice to Bank's other rights, the Bank
reserves the right to charge interest on overdue amounts from the due
date until actual payment at such rate as the Bank may reasonably
determine.
4.2 Overdrafts
If a debit to any currency in the Cash Account results in a debit
balance, then Bank may, in its discretion, (i) advance an amount equal
to the overdraft, (ii) or refuse to settle in whole or in part the
transaction causing such debit balance, or (iii) if any such
transaction is posted to the Securities Account, reverse any such
posting. If Bank elects to make such an advance, the advance will be
deemed a loan to Customer, payable on demand, bearing interest at the
applicable rate charged by Bank from time to time, for such
overdrafts, from the date of such advance to the date of payment (both
after as well as before judgement) and otherwise on the terms on which
Bank makes similar overdrafts available from time to time. No prior
action or course of dealing on Bank's part with respect to the
settlement of transactions on Customer's behalf will be asserted by
Customer against Bank for Bank's refusal to make advances to the Cash
Account or to settle any transaction for which Customer does not have
sufficient available funds in the applicable currency in the Account.
4.3 Bank's Right Over Securities; Set-off
(a) Without prejudice to Bank's rights under Applicable Law,
until satisfaction of all Liabilities outstanding from time
to time (whether actual or contingent) of Customer under or
in connection with this Agreement, Bank shall have, and
Customer shall grant to Bank a security interest in and a
lien on the Financial Assets held in the Securities Account
and Bank shall be entitled without notice to Customer, to
withhold delivery of such Financial Assets, sell or
otherwise realize any of such Financial Assets and to apply
the proceeds and any other monies credited to the Cash
Account in satisfaction of such Liabilities. For this
purpose, Bank may make such currency conversions as may be
necessary at its then current rates for the sale and
purchase of relevant currencies.
(b) Without prejudice to Bank's rights under Applicable Law,
Bank may set off against any amount owing by Customer under
this Agreement any amount in any currency standing to the
credit of any of Customer's accounts (whether deposit or
otherwise) with any Bank branch or office or with any
Affiliate of Bank. For this purpose, Bank shall be entitled
to accelerate the maturity of any fixed term deposits and to
effect such currency conversions as may be necessary at its
current rates for the sale and purchase of the relevant
currencies.
5. SUBCUSTODIANS, SECURITIES DEPOSITORIES, AND OTHER AGENTS
5.1 Appointment of Subcustodians; Use of Securities Depositories
(a) Bank is authorized under this Agreement to act through and
hold Customer's Financial Assets with Subcustodians. Bank
will use reasonable care in the selection, monitoring and
continued appointment of such Subcustodians. In addition,
Bank and each Subcustodian may deposit Securities with, and
hold Securities in any Securities Depository on such terms
as such Securities Depository customarily operates and
Customer will provide Bank with such documentation or
acknowledgements that Bank may require to hold the Financial
Assets in such Securities Depository.
(b) Any agreement Bank enters into with a Subcustodian for
holding Bank's customers' assets will provide that such
assets will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of such
Subcustodian or its creditors except a claim for payment for
their safe custody or administration, or, in the case of
cash deposits, except for liens or rights in favor of
creditors of the Subcustodian arising under bankruptcy,
insolvency or similar law, and that the beneficial ownership
thereof will be freely transferable without the payment of
money or value other than for safe custody or
administration. Bank shall be responsible for all claims for
payment of fees for safe custody or administration so that
no Subcustodian exercises any claim for such payment against
Customer's assets. Where a Subcustodian deposits Securities
with a Securities Depository, Bank will cause the
Subcustodian to identify on its records as belonging to
Bank, as agent, the Securities shown on the Subcustodian's
account at such Securities Depository. This Section 5.1(b)
will not apply to the extent of any special agreement or
arrangement made by Customer with any particular
Subcustodian.
(c) Bank is not responsible for the selection or monitoring of
any Securities Depository and will not be liable for any act
or omission by (or the insolvency of) any Securities
Depository. In the event the Customer incurs a loss due to
the negligence, willful default, or insolvency of a
Securities Depository, Bank will make reasonable efforts, in
its discretion, to seek recovery from the Securities
Depository, but Bank will not be obligated to institute
legal proceedings, file proof of claim in any insolvency
proceeding, or take any similar action.
5.2 Liability for Subcustodians
(a) Subject to Section 7.1(b), Bank will be liable for direct
losses incurred by Customer that result from:
(i) the failure by a Subcustodian to use reasonable care in
the provision of custodial services by it in accordance
with the standards prevailing in the relevant market or
from the fraud or willful misconduct of such
Subcustodian in the provision of custodial services by
it; or
(ii) the insolvency of any Affiliated Subcustodian.
(b) Subject to Section 5.1(a) and Bank's duty to use reasonable
care in the monitoring of a Subcustodian's financial
condition as reflected in its published financial statements
and other publicly available financial information
concerning it customarily reviewed by Bank in its oversight
process, Bank will not be responsible for the insolvency of
any Subcustodian which is not a branch or an Affiliated
Subcustodian.
(c) Bank reserves the right to add, replace or remove
Subcustodians. Bank will give prompt notice of any such
action, which will be advance notice if practicable. Upon
request by Customer, Bank will identify the name, address
and principal place of business of any Subcustodian and the
name and address of the governmental agency or other
regulatory authority that supervises or regulates such
Subcustodian.
6. ADDITIONAL PROVISIONS RELATING TO CUSTOMER
6.1 Representations of Customer and Bank
(a) The Customer represents and warrants that (i) it has full
authority and power, and has obtained all necessary
authorizations and consents, to deposit and control the
Financial Assets and cash in the Accounts, to use Bank as
its custodian in accordance with the terms of this
Agreement, and to borrow money (both any short term or
intraday borrowings in order to settle transactions prior to
receipt of covering funds), ▇▇▇▇▇ ▇ ▇▇▇▇ over Financial
Assets as contemplated by Section 4.3, and enter into
foreign exchange transactions; (ii) assuming execution and
delivery of this Agreement by Bank, this Agreement is
Customer's legal, valid and binding obligation, enforceable
in accordance with its terms and it has full power and
authority to enter into and has taken all necessary
corporate action to authorize the execution of this
Agreement (iii) it has not relied on any oral or written
representation made by Bank or any person on its behalf, and
acknowledges that this Agreement sets out to the fullest
extent the duties of Bank; (iv) it is a resident of the
United States and shall notify Bank of any changes in
residency and (v) the Financial Assets and cash deposited in
the Accounts are not subject to any encumbrance or security
interest whatsoever and Customer undertakes that, so long as
Liabilities are outstanding, it will not create or permit to
subsist any encumbrance or security interest over such
Financial Assets or cash.
Bank may rely upon the certification of such other facts as
may be required to administer Bank's obligations under this
Agreement and Customer shall indemnify Bank against all
losses, liability, claims or demands arising directly or
indirectly from any such certifications.
(b) Bank represents and warrants that (i) assuming execution and
delivery of this Agreement by Customer, this Agreement is
Bank's legal, valid and binding obligation, enforceable in
accordance with its terms and (ii) it has full power and
authority to enter into and has taken all necessary
corporate action to authorize the execution of this
Agreement.
6.2 Customer is Liable to Bank Even if it is Acting for Another Person
If Customer is acting as an agent or for another person as envisaged
in Section 2.1(a) in respect of any transaction, cash, or Financial
Asset, Bank nevertheless will treat Customer as its principal for all
purposes under this Agreement. In this regard, Customer will be liable
to Bank as a principal in respect of any transactions relating to the
Account. The foregoing will not affect any rights Bank might have
against Customer's principal or the other person envisaged by Section
2.1(a).
7. WHEN BANK IS LIABLE TO CUSTOMER
7.1 Standard of Care; Liability
(a) Bank will use reasonable care in performing its obligations
under this Agreement. Bank will not be in violation of this
Agreement with respect to any matter as to which it has
satisfied its obligation of reasonable care.
(b) Bank will be liable for the Customer's direct damages to the
extent they result from Bank's fraud, negligence or willful
misconduct in performing its duties as set out in this
Agreement and to the extent provided in Section 5.2(a).
Nevertheless, under no circumstances will Bank be liable for
any indirect, incidental, consequential or special damages
(including, without limitation, lost profits) of any form
incurred by any person or entity, whether or not foreseeable
and regardless of the type of action in which such a claim
may be brought, with respect to the Accounts, Bank's
performance under this Agreement, or Bank's role as
custodian.
(c) The Customer will indemnify Bank Indemnitees against, and
hold them harmless from, any Liabilities that may be imposed
on, incurred by or asserted against any of Bank Indemnitees
in connection with or arising out of (i) Bank's performance
under this Agreement, provided Bank Indemnitees have not
acted with negligence or engaged in fraud or willful
misconduct in connection with the Liabilities in question or
(ii) any Bank Indemnitee's status as a holder of record of
Customer's Financial Assets. Nevertheless, Customer will not
be obligated to indemnify any Bank Indemnitee under the
preceding sentence with respect to any Liability for which
Bank is liable under Section 5.2 of this Agreement.
(d) Customer agrees that Bank provides no service in relation
to, and therefore has no duty or responsibility to: (i)
question Instructions or make any suggestions to Customer or
an Authorized Person regarding such Instructions; (ii)
supervise or make recommendations with respect to
investments or the retention of Financial Assets; (iii)
advise Customer or an Authorized Person regarding any
default in the payment of principal or income of any
security other than as provided in Section 2.7(b) of this
Agreement; (iv) evaluate or report to Customer or an
Authorized Person regarding the financial condition of any
broker, agent or other party to which Bank is instructed to
deliver Financial Assets or cash.
7.2 Force Majeure
Bank will maintain and update from time to time business continuation
and disaster recovery procedures with respect to its global custody
business that it determines from time to time meet reasonable
commercial standards. Bank will have no liability, however, for any
damage, loss, expense or liability of any nature that Customer may
suffer or incur, caused by an act of God, fire, flood, civil or labor
disturbance, war, terrorism, act of any governmental authority or
other act or threat of any authority (de jure or de facto), legal
constraint, fraud or forgery, malfunction of equipment or software
(except where such malfunction is primarily attributable to Bank'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 Bank
(including without limitation, the non-availability of appropriate
foreign exchange).
7.3 Bank May Consult With Counsel
Bank will be entitled to rely on, and may act upon the advice of
professional advisers in relation to matters of law, regulation or
market practice (which may be the professional advisers of Customer),
and shall not be deemed to have been negligent with respect to any
action taken or omitted pursuant to such advice.
7.4 Bank Provides Diverse Financial Services and May Generate Profits
as a Result
Customer hereby authorizes Bank to act under this Agreement
notwithstanding that: (a) Bank or any of its divisions, branches or
Affiliates may have a material interest in transactions entered into
by Customer with respect to the Account or that circumstances are such
that Bank may have a potential conflict of duty or interest, including
the fact that Bank or its Affiliates may act as a market maker in the
Financial Assets to which Instructions relate, provide brokerage
services to other customers, act as financial adviser to the issuer of
such Financial Assets, act in the same transaction as agent for more
than one customer, have a material interest in the issue of the
Financial Assets; or earn profits from any of the activities listed
herein. (b) Bank or any of its divisions, branches or Affiliates may
be in possession of information tending to show that the Instructions
received may not be in the best interests of Customer. Bank is not
under any duty to disclose any such information.
7.5 Assets Held Outside Bank's Control
Bank will not be obliged to hold Securities or cash with any person
not agreed to by Bank. Furthermore, Bank will not be obliged to
register or record Securities in the name of any person not agreed to
by Bank. If, however, the Customer makes such a request and Bank
agrees to the request, the consequences of doing so will be at the
Customer's own risk. Bank will not be liable for any losses incurred
as a result and may be precluded from providing some of the services
referred to in this Agreement (for example, and without limitation,
income collection, proxy voting, class action litigation and Corporate
Action notification and processing).
7.6 Ancillary services
Bank and its Subcustodians may use third parties to provide ancillary
services (i.e. services that do not form part of the custody services
contained in Article 2 and which include without limitation courier or
pricing services). Whilst Bank will use reasonable care (and procure
that its Subcustodians use reasonable care) in the selection and
retention of such third parties, it will not be responsible for any
errors or omissions made by such third party in providing the relevant
services.
8. TAXATION
8.1 Tax Obligations
(a) Customer confirms that Bank 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 Customer's Accounts.
(b) Customer will provide to Bank 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. Customer undertakes to notify Bank immediately
if any information requires updating or correcting. Bank
provides no service of controlling or monitoring, and
therefore has no duty in respect of, or liability for any
taxes, penalties, interest or additions to tax, payable or
paid that result from (i) the inaccurate completion of
documents by Customer or any third party; (ii) provision to
Bank or a third party of inaccurate or misleading
information by Customer or any third party; (iii) the
withholding of material information by Customer or any third
party; or (iv) as a result of any delay by any revenue
authority or any other cause beyond Bank's control.
(c) If Bank does not receive appropriate certifications,
documentation and information then, as and when appropriate
and required, additional tax shall be deducted from all
income received in respect of the Financial Assets issued
(including, but not limited to, United States non-resident
alien tax and/or backup withholding tax.
(d) Customer will be responsible in all events for the timely
payment of all taxes relating to the Financial Assets in the
Securities Account provided, however, that Bank will be
responsible for any penalty or additions to tax due solely
as a result of Bank's negligent acts or omissions with
respect to paying or withholding tax or reporting interest,
dividend or other income paid or credited to the Cash
Account.
8.2 Tax Relief Services
(a) Subject to the provisions of this Section, Bank will apply
for a reduction of withholding tax and any refund of any tax
paid or tax credits in respect of income payments on
Financial Assets credited to the Securities Account that
Bank believes may be available. To defray expenses
pertaining to nominal tax claims, Bank may from time-to-time
set minimum thresholds as to a de minimus value of tax
reclaims or reduction of withholding which it will pursue in
respect of income payments under this Section.
(b) The provision of a tax relief service by Bank is conditional
upon Bank receiving from Customer (i) a declaration of its
identity and place of residence and (ii) certain other
documentation (pro forma copies of which are available from
Bank), prior to the receipt of Financial Assets in the
Account or the payment of income.
(c) Bank will perform tax relief services only with respect to
taxation levied by the revenue authorities of the countries
advised to Customer from time to time and Bank may, by
notification in writing, in its absolute discretion,
supplement or amend the countries in which the tax relief
services are offered. Other than as expressly provided in
this Section 8.2 Bank will have no responsibility with
regard to Customer's tax position or status in any
jurisdiction.
9. TERMINATION
9.1 Termination
(a) The initial term of this Agreement shall be for a period of
three years following the date on which Bank commenced
providing services under the Agreement. Following the
initial term, Customer may terminate this Agreement on sixty
(60) days' written notice to Bank. Bank may terminate this
Agreement on [one hundred and eighty (180)] days' written
notice to the Customer.
(b) Notwithstanding Section 9.1(a):
(i) Either party may terminate this Agreement immediately
on written notice to the other party in the event that
a material breach of this Agreement by the other party
has not been cured within thirty (30) days' of that
party being given written notice of the material
breach;
(ii) Either party may terminate this Agreement immediately
on written notice to the other party upon the other
party being declared bankrupt, entering into a
composition with creditors, obtaining a suspension of
payment, being put under court controlled management or
being the subject of a similar measure;
(iii) Bank may terminate this Agreement on sixty (60) days'
written notice to Customer in the event that Bank
reasonably determines that Customer has ceased to
satisfy Bank's customary credit requirements; and
(iv) Customer may terminate this Agreement at any time on
sixty (60) days' written notice to Bank upon payment of
a termination fee. The termination fee will be an
amount equal to six (6) times the average monthly fees
paid during the six month period prior to Customer's
notice of termination, or since the date Bank commenced
providing services under this Agreement if that period
is less than six months.
9.2 Exit Procedure
Customer will provide Bank full details of the persons to whom Bank
must deliver Financial Assets and cash a reasonable period before the
effective time of termination of this Agreement. If Customer fails to
provide such details in a timely manner, Bank shall be entitled to
continue to be paid fees under this Agreement until such time as it is
able to deliver the Financial Assets and cash to successor custodian,
but Bank may take such steps as it reasonably determines to be
necessary to protect itself following the effective time of
termination, including ceasing to provide transaction settlement
services in the event that Bank is unwilling to assume any related
credit risk. Bank will in any event be entitled to deduct any amounts
owing to it prior to delivery of the Financial Assets and cash (and,
accordingly, Bank will be entitled to sell Financial Assets and apply
the sale proceeds in satisfaction of amounts owing to it). Customer
will reimburse Bank promptly for all out-of-pocket expenses it incurs
in delivering Financial Assets upon termination. Termination will not
affect any of the liabilities either party owes to the other arising
under this Agreement prior to such termination.
10. MISCELLANEOUS
10.1 Notifications
Notices (other than Instructions) under this Agreement will be served
by registered mail or hand delivery to the address of the respective
parties as set out on the first page of this Agreement, unless notice
of a new address is given to the other party in writing. Notice will
not be deemed to be given unless it has been received.
10.2 Successors and Assigns
This Agreement will be binding on each of the parties' successors and
assigns, but the parties agree that neither party can assign its
rights and obligations under this Agreement without the prior written
consent of the other party, which consent will not be unreasonably
withheld.
10.3 Interpretation
Headings are for convenience only and are not intended to affect
interpretation. References to Sections are to Sections of this
Agreement and references to sub-Sections and paragraphs are to
sub-Sections of the Sections and paragraphs of the sub-Sections in
which they appear.
10.4 Entire Agreement
(a) The following Rider(s) are incorporated into this Agreement:
___ Cash Trade Execution;
___ Cash Sweep;
___ Accounting Services;
___ Mutual Fund;
___ Compliance Reporting Services; and
___ Performance Measurement Reporting Services.
(b) This Agreement, including the Schedules, Exhibits, and
Riders (and any separate agreement which Bank and Customer
may enter into with respect to any Cash Account), 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. Amendments must be in writing and
signed by both parties.
10.5 Information Concerning Deposits at Bank's London Branch
Under U.S. federal law, deposit accounts that Customer maintains
in Bank's foreign branches (outside of the U.S.) are not insured
by the Federal Deposit Insurance Corporation. In the event of
Bank's liquidation, foreign branch deposits have a lesser
preference than U.S. deposits, and such foreign deposits are
subject to cross-border risks. However, the Financial Services
Compensation Scheme (the "FSCS") was created under the Financial
Services and Markets ▇▇▇ ▇▇▇▇. The terms of the FSCS offer
protection in connection with deposits and investments in the
event of the persons to whom Bank's London Branch provides
services suffering a financial loss as a direct consequence of
Bank's London Branch being unable to meet any of its liabilities,
and subject to the FSCS rules regarding eligible claimants and
eligible claims, the Customer may have a right to claim
compensation from the FSCS. Subject to the terms of the FSCS, the
limit on the maximum compensation sum payable by the FSCS in
relation to investment business is(pound)48,000 and in relation
to deposits is(pound)31,700. A detailed description of the FSCS
(including information on how to make a claim, eligibility
criteria and the procedures involved) is available from the FSCS
who can be contacted at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇.
10.6 Insurance
The Customer acknowledges that Bank will not be required to
maintain any insurance coverage specifically for the benefit of
the Customer. Bank will, however, provide details of its own
general insurance coverage to the Customer on request.
10.7 Security Holding Disclosure
With respect to Securities and Exchange Commission Rule 14b-2
under The U.S Shareholder Communications Act, regarding
disclosure of beneficial owners to issuers of Securities, Bank is
instructed not to disclose the name, address or Security
positions of Customer in response to shareholder communications
requests regarding the Account.
10.8 USA PATRIOT Act Disclosure
Section 326 of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 ("USA PATRIOT Act") requires Bank to implement
reasonable procedures to verify the identity of any person that
opens a new Account with it. Accordingly, Customer acknowledges
that Section 326 of the USA PATRIOT Act and Bank's identity
verification procedures require Bank to obtain information which
may be used to confirm Customer's identity including without
limitation Customer's name, address and organizational documents
("identifying information"). Customer may also be asked to
provide information about its financial status such as its
current audited and unaudited financial statements. Customer
agrees to provide Bank with and consents to Bank obtaining from
third parties any such identifying and financial information
required as a condition of opening an account with or using any
service provided by Bank.
10.9 Governing Law and Jurisdiction
This Agreement will be construed, regulated, and administered
under the laws of the United States or State of New York, as
applicable, without regard to New York's principles regarding
conflict of laws, except that the foregoing shall not reduce any
statutory right to choose New York law or forum. The United
States District Court for the Southern District of New York will
have the sole and exclusive jurisdiction over any lawsuit or
other judicial proceeding relating to or arising from this
Agreement. If that court lacks federal subject matter
jurisdiction, the Supreme Court of the State of New York, New
York County will have sole and exclusive jurisdiction. Either of
these courts will have proper venue for any such lawsuit or
judicial proceeding, and the parties waive any objection to venue
or their convenience as a forum. The parties agree to submit to
the jurisdiction of any of the courts specified and to accept
service of process to vest personal jurisdiction over them in any
of these courts. The parties further hereby knowingly,
voluntarily and intentionally waive, to the fullest extent
permitted by applicable law, any right to a trial by jury with
respect to any such lawsuit or judicial proceeding arising or
relating to this Agreement or the transactions contemplated
hereby. To the extent that in any jurisdiction Customer may now
or hereafter be entitled to claim, for itself or its assets,
immunity from suit, execution, attachment (before or after
judgement) or other legal process, Customer shall not claim, and
it hereby irrevocably waives, such immunity.
10.10 Severability; Waiver; and Survival
(a) If one or more provisions of this Agreement are held
invalid, illegal or unenforceable in any respect on the
basis of any particular circumstances or in any
jurisdiction, the validity, legality and enforceability of
such provision or provisions under other circumstances or in
other jurisdictions and of the remaining provisions will not
in any way be affected or impaired.
(b) Except as otherwise provided herein, no failure or delay on
the part of either party in exercising any power or right
under this Agreement operates as a waiver, nor does any
single or partial exercise of any power or right preclude
any other or further exercise, or the exercise of any other
power or right. No waiver by a party of any provision of
this Agreement, or waiver of any breach or default, is
effective unless it is in writing and signed by the party
against whom the waiver is to be enforced.
(c) The parties' rights, protections, and remedies under this
Agreement shall survive its termination.
10.11 Confidentiality
(a) Subject to Clause 10.11(b) the Bank will hold all
Confidential Information in confidence and will not disclose
any Confidential Information except as may be required by
Applicable Law, a regulator with jurisdiction over the
Bank's business, or with the consent of the Customer.
(b) The Customer authorizes the Bank to disclose Confidential
Information to:
(i) any Subcustodian, subcontractor, agent, Securities
Depository, securities exchange, broker, third party
agent, proxy solicitor, issuer, or any other person
that the Bank believes it is reasonably required in
connection with the Bank's provision of relevant
services under this Agreement;
(ii) its professional advisors, auditors or public
accountants;
(iii) its Affiliates, and
(iv) any revenue authority or any governmental entity in
relation to the processing of any tax relief claim.
(c) Except as otherwise required by Applicable Law or as needed
to enforce the terms of this Agreement, the parties shall
hold the terms and conditions of this Agreement in
confidence.
10.12 Counterparts
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.
10.13 No Third Party Beneficiaries
A person who is not a party to this Agreement shall have no right to
enforce any term of this Agreement.
THE CUSTOMER JPMORGAN CHASE BANK, N.A.
By:_______________________________ By:______________________
Name: Name:
Title: Title:
Date: Date:
SCHEDULE 1
List of Subcustodians and Markets Used by the Bank
UP TO DATE LIST TO BE INSERTED AT TIME OF SIGNING
SCHEDULE 2
Persons Authorized To Give Instructions
--------------------------------------------------------------------------------
Full Name and Method of Limitation in Telephone Specimen
Official Position Instruction* Authority** Number Signature
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signed for and on behalf of the Customer by:
Signature:
Name:
Position:
* i.e. writing, telephone or facsimile.
**** "All", "No limit" or similar phrases would include authority to issue
instructions relating to foreign exchange.
SCHEDULE 3
Authorized Fund Managers/Advisers
Persons authorized as fund managers will also have to complete an authority in
similar form to Schedule 2, but with some additional wording. A specimen copy is
attached as Appendix A.
--------------------------------------------------------------------------------
Full name of Fund Address Accounts for which Limitation in
Manager/Adviser authorized* Authority**
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signature:
Name:
Title:
* If left blank, the Fund Manager is authorized to give instructions on all
accounts.
** "All" or "No limit" or similar phrases would include authority to issue
instructions relating to foreign exchange.
SCHEDULE 4
Form of Board Resolution
To: JPMorgan Chase Bank, N.A.
.............. 20...
We hereby certify that the following is a true copy of the minutes of the Board
of Directors of
..........................................................................* (the
"Company") which was duly called and held on
......................................., 20....... and at which a duly qualified
quorum was present throughout and entitled to vote.
1. There was produced to the meeting a form of Custody Agreement provided by
JPMorgan Chase Bank, N.A. ("JPMorgan") for use in connection with the
opening of one or more cash and securities accounts and the conduct of such
other transactions between the Company and JPMorgan as referred to therein.
The form of Custody Agreement produced had been completed by an officer of
the Company, and in particular it was noted that details of the Authorised
Persons (as defined therein) and details of persons authorised to give
instructions on behalf of the Company had been completed in Schedule 2.
Details of any Fund Managers and Advisers had been completed in Schedule 3.
The indemnities given to JPMorgan in the Custody Agreement were also noted.
The meeting considered the form of the Custody Agreement.
2. IT WAS RESOLVED that the form of Custody Agreement (together with the
Schedule and Appendices), completed in the manner and form produced at the
meeting, be and is hereby approved and that
................................................................** be and
he/she is hereby authorised, for and on behalf of the Company, to sign and
deliver the same together with such changes and amendments thereto as
he/she may in his/her sole discretion think fit.
3. There was produced to the meeting a form of power of attorney ("power of
attorney") to be given by the Company to JPMorgan to enable JPMorgan to
provide tax reclaim services as provided for in the Custody Agreement. The
meeting considered the form of the power of attorney and in particular the
indemnities contained in it. IT WAS RESOLVED that that power of attorney be
and it is hereby approved and that it be executed under seal in accordance
with the Company's constitution.
.............................................. Director
.............................................. Secretary
* Name of Company in full.
APPENDIX A
Specimen Fund Manager Mandate
TO: JPMORGAN CHASE BANK, N.A.
GLOBAL CUSTODY DIVISION
DATE: ____________________
Dear Sirs,
Re: Global Custody for (the "Customer").
We warrant that we have been appointed by the Customer as its fund manager for
the account(s) listed below and that we have full authority from the Customer to
give instructions in respect of all transactions relating to the account(s). We
agree to indemnify and hold JPMorgan harmless for any losses, costs or
liabilities it or its agents incur as a result of any breach of this warranty.
We set out overleaf the names and specimen signatures of those individuals
authorised by us to operate accounts and give instructions on behalf of the
Customer in respect of the account(s).
JPMorgan may accept and act on any instructions that have been verified in
accordance with a Security Procedure, as defined in the Global Custody Agreement
between JPMorgan and the Customer, or, if no such Security Procedure is
applicable, which JPMorgan believes in good faith to have been given by one of
those individuals listed below.
We acknowledge that JPMorgan may record our telephone conversations and agree to
ensure that any codes, passwords or similar devices are reasonably safeguarded.
Unless specified otherwise, all persons authorised to give instructions shall be
authorised to give instructions in respect of all securities and cash accounts,
for foreign exchange, and shall be authorised to give instructions
notwithstanding that they may result in an overdraft on any cash account.
Signed for and on behalf of [Name of fund manager]
Signature:
Name:
Position:
Evidence of Authority to sign this Letter is enclosed
ACCOUNT(S) COVERED BY THIS MANDATE:
--------------------------------------------------------------------------------
Full Name and Method of Limitation in Telephone Specimen
Official Position Instruction* Authority** Number Signature
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
* i.e. writing, telephone or facsimile.
** ** "All", "No limit" or similar phrases would include authority to issue
instructions relating to foreign exchange.
SCHEDULE 5
Electronic Access
1. The Bank shall permit the Customer and its Authorized Persons to
access electronically the applications and products listed on Exhibit
1 to this Agreement (the "Products"). The Bank reserves the right to
modify this Schedule 5 and, subject to the terms and conditions of the
Agreement, the products and services available through the Products,
upon notice to the Customer. The Bank shall endeavour to give the
Customer reasonable notice of its termination or suspension of access
hereunder to any Product, but may do so immediately upon written
notice to the Customer if the Bank determines, in its sole discretion,
that providing access to such Product would violate Applicable Law or
that the security or integrity of such Product is at risk.
2. In consideration of the fees paid by the Customer to the Bank and
subject to any applicable Software License Addendum in relation to
Bank owned or sublicensed Software provided for a particular
Application, the Bank grants to the Customer on the terms of this
Schedule 5 a non-exclusive license to use the Products and the
information and data made available to the Customer through the
Products (the "Data") for the sole use of the Customer. The Customer
may download the Data and print out hard copies for its reference,
provided that it does not remove any copyright or other notices
contained therein or any hyperlink or other reference to any such
notice.
3. The rights and obligations of the parties with respect to the
provision of certain cash products and services via the Products shall
also be governed, to the extent not governed by this Agreement, by the
Bank's terms and conditions relating to such products and services, as
the same may be amended from time to time (the "Product Terms"). If
and to the extent that there is a conflict between the Product Terms
and this Schedule 5, the provisions of this Schedule 5 shall prevail.
4. The Customer acknowledges that there are certain security, corruption,
transaction error and access availability risks associated with using
open networks such as the internet, and the Customer hereby expressly
assumes such risks. The Customer shall make its own independent
assessment of the adequacy of the internet and of the security
procedures made available by the Bank. The Customer acknowledges and
agrees that the selection and use by it of third party security and
communications software and third party service providers is the sole
responsibility of the Customer, and the Bank disclaims all risks
related thereto, notwithstanding that the Bank may recommend certain
security and/or communication software packages. All such software
must be interoperable with the Bank's software. Each of the Customer
and the Bank shall be responsible for the proper functioning,
maintenance and security of its own systems, services, software and
other equipment.
5. Notwithstanding the other provisions of the Agreement, the Bank shall
not be liable for any Liabilities arising out of the use or
unavailability of the Bank's web site or any means provided by the
Bank of accessing the Products through the Bank's web site in the
absence of the Bank's gross negligence or wilful misconduct.
6. The Customer shall not use the Products to transmit (i) any virus,
worm, or destructive element or any programs or data that may be
reasonably expected to interfere with or disrupt the Products or
servers connected to the Products; (ii) material that violates the
rights of another, including but not limited to the intellectual
property rights of another; and (iii) "junk mail", "spam", "chain
letters" or unsolicited mass distribution of e-mail.
7. The Customer shall promptly and accurately designate in writing to the
Bank the geographic location of its users from time to time. The
Customer further represents and warrants to the Bank that the Customer
shall not access the service from any jurisdiction which the Bank
informs the customer or where the Customer has actual knowledge that
the service is not authorized for use due to local regulations or
laws. Prior to submitting any document which designates the persons
authorized to act on the Customer's behalf, the Customer shall obtain
from each individual referred to in such document all necessary
consents to enable the Bank to process the data set out therein for
the purposes of providing the Products.
8. The Customer shall be responsible for the compliance of its Authorized
Persons with the terms of this Schedule 5.
EXHIBIT 1
Products
UP TO DATE LIST TO BE INSERTED AT TIME OF SIGNING