Global Custody Agreement - New York - General - May 2012 Global Custody Agreement - New York - General - May 2012

 

Exhibit 9

 

EXECUTION COPY

 

 

 

 

 

Table of contents

 

1.	INTENTION OF THE PARTIES; DEFINITIONS	1
1.1	Intention of the Parties	1
1.2	Definitions; Interpretation	1
2.	WHAT ▇.▇. ▇▇▇▇▇▇ IS REQUIRED TO DO	4
2.1	Set Up Accounts	4
2.2	Cash Account	5
2.3	Segregation of Assets; Nominee Name	5
2.4	Settlement of Transactions	6
2.5	Contractual Settlement Date Accounting	6
2.6	Actual Settlement Date Accounting	7
2.7	Income Collection (AutoCreditâ)	7
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 ▇.▇. ▇▇▇▇▇▇'▇ 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
2.18	Sealed Envelopes	12
3.	INSTRUCTIONS	12
3.1	Acting on Instructions; Method of Instruction and Unclear Instructions	12
3.2	Verification and Security Procedures	13
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 ▇.▇. ▇▇▇▇▇▇	13
4.1	Fees and Expenses	13
4.2	Overdrafts	14
4.3	▇.▇. ▇▇▇▇▇▇’▇ Right Over Securities; Set-off	14
5.	SUBCUSTODIANS, SECURITIES DEPOSITORIES, AND OTHER AGENTS	15
5.1	Appointment of Subcustodians; Use of Securities Depositories	15
5.2	Liability for Subcustodians	15
6.	ADDITIONAL PROVISIONS	16
6.1	Representations of the Customer and ▇.▇. ▇▇▇▇▇▇	16
6.2	The Customer is Liable to ▇.▇. ▇▇▇▇▇▇ Even if it is Acting for Another Person	17
6.3	Special Settlement Services	17

 

 

7.	WHEN ▇.▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER	17
7.1	Standard of Care; Liability	17
7.1	Standard of Care; Liability	17
7.2	Force Majeure	18
7.3	▇.▇. ▇▇▇▇▇▇ May Consult With Counsel	19
7.4	▇.▇. ▇▇▇▇▇▇ Provides Diverse Financial Services and May Generate Profits as a Result	19
7.5	Assets Held Outside ▇.▇. ▇▇▇▇▇▇’▇ Control	19
7.6	Ancillary services	19
7.7	Service Locations	20
8.	TAXATION	20
8.1	Tax Obligations	20
8.2	Tax Relief Services	21
9.	TERMINATION	21
9.1	Termination	21
9.2	Exit Procedure	22
10.	MISCELLANEOUS	22
10.1	Notifications	22
10.2	Successors and Assigns	22
10.3	Entire Agreement	23
10.4	Information Concerning Deposits at ▇.▇. ▇▇▇▇▇▇’▇ Non-US Branch	23
10.5	Insurance	23
10.6	Security Holding Disclosure	23
10.7	USA PATRIOT Act Disclosure	23
10.8	Governing Law and Jurisdiction	24
10.9	Severability; Waiver; and Survival	24
10.10	Confidentiality	24
10.11	Counterparts	25
10.12	No Third Party Beneficiaries	25

SCHEDULE A – List of Customers as of [Date]	27
SCHEDULE 1 List of Subcustodians and Markets Used by ▇.▇. ▇▇▇▇▇▇	28
SCHEDULE 2 Form of Board Resolution	29
SCHEDULE 3 ▇.▇. ▇▇▇▇▇▇ Worldwide Securities Services Custody Restricted Markets Schedule	30
ANNEX A Electronic Access	34

 

 

GLOBAL CUSTODY AGREEMENT

 

This Agreement, dated March 1, 2013, is between JPMORGAN CHASE BANK, NATIONAL ASSOCIATION ("▇.▇. ▇▇▇▇▇▇"), with a place of business at One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and each trust listed on Schedule A attached hereto (each a "Customer"), each 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 ▇.▇. ▇▇▇▇▇▇ will provide custodial, settlement and other associated services to the Customer. ▇.▇. ▇▇▇▇▇▇ will be responsible for the performance of only those duties expressly set forth in this Agreement.

 

(b)

Investing in Financial Assets and cash in foreign jurisdictions may involve risks of loss or other burdens and costs. The Customer acknowledges that ▇.▇. ▇▇▇▇▇▇ 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.

 

(c)

The terms and conditions of this Agreement are applicable only to the services which are specified in this Agreement.

 

1.2

Definitions; Interpretation

 

(a)

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, ▇.▇. ▇▇▇▇▇▇ or the Customer, as the case may be.

 

“Affiliated Subcustodian Bank” means a Subcustodian that is both a subsidiary of JPMorgan Chase & Co. and either (i) a bank chartered or incorporated in the United States of America or (ii) a branch or subsidiary of such a bank.

 

“Applicable Law” means any applicable statute, treaty, rule, regulation or common law and any applicable decree, injunction, judgment, 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 as provided by ▇.▇. ▇▇▇▇▇▇ (or by written notice in the form as provided by ▇.▇. ▇▇▇▇▇▇ from any agent designated by the Customer, including, without limitation, an investment manager) to act on behalf of the Customer under this Agreement and any person who has been given an access code by a security administrator appointed by the Customer which allows the provision of Instructions. Such persons will continue to be Authorized Persons until such time as ▇.▇. ▇▇▇▇▇▇ 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.

 

 

“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 ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇’▇ breach of the terms of this Agreement or information which ▇.▇. ▇▇▇▇▇▇ 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 requires 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.

 

"Instruction" means an instruction that has been verified in accordance with a Security Procedure or, if no Security Procedure is applicable, which ▇.▇. ▇▇▇▇▇▇ believes in good faith to have been given by an Authorized Person.

 

“▇.▇. ▇▇▇▇▇▇ Indemnitees” means ▇.▇. ▇▇▇▇▇▇, its Affiliates, its Subcustodians, and their respective nominees, directors, officers, employees and agents.

 

“▇.▇. ▇▇▇▇▇▇’▇ London Branch” means the London branch office of JPMorgan Chase Bank, N.A.

 

“Liabilities” means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, taxes (other than taxes based solely on ▇.▇. ▇▇▇▇▇▇’▇ income), or expenses of any kind whatsoever (whether actual or contingent and including, without limitation, reasonable attorneys’, accountants’, consultants’ or experts’ fees and disbursements and, where relevant, any and all amounts owing to ▇.▇. ▇▇▇▇▇▇ by the Customer’s counterparty in connection with collateral/control accounts established at ▇.▇. ▇▇▇▇▇▇ pursuant to the Customer’s Instruction) outstanding from time to time.

 

 

“Sealed Envelope” means a sealed envelope which the Customer requests ▇.▇. ▇▇▇▇▇▇ to hold in custody. Nothing in this definition shall obligate ▇.▇. ▇▇▇▇▇▇ to accept any such Sealed Envelope.

 

“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 and any other property as may be acceptable to ▇.▇. ▇▇▇▇▇▇ for the Securities Account.

 

“Securities Account” means each Securities custody account on ▇.▇. ▇▇▇▇▇▇’▇ 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 for the central handling of Securities, whether or not acting in that capacity.

 

“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 ▇.▇. ▇▇▇▇▇▇, 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” means a security procedure to be followed by the Customer upon the issuance of an Instruction and/or by ▇.▇. ▇▇▇▇▇▇ upon the receipt of an Instruction, so as to enable ▇.▇. ▇▇▇▇▇▇ to verify that such Instruction is authorized, as set forth in service level documentation in effect from time to time between the parties with respect to the services set forth in this Agreement, or as otherwise agreed in writing by the parties. A Security Procedure may, without limitation, involve the use of algorithms, codes, passwords, encryption or telephone call backs, and may be updated by ▇.▇. ▇▇▇▇▇▇ from time to time upon notice to the Customer. The Customer acknowledges that the Security Procedure is 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 authorized Instruction.

 

“Subcustodian” means any of the subcustodians appointed by ▇.▇. ▇▇▇▇▇▇ 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 Bank.

 

(b)

Headings are for reference and convenience only and are not intended to affect interpretation.

(c)

References to Articles and Sections are to Articles and 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.

 

 

(d)

Unless the context requires otherwise, references in this Agreement to "persons" shall include legal as well as natural entities; references importing the singular shall include the plural (and vice versa); use of the generic masculine pronoun shall include the feminine; use of the term “including” shall be deemed to mean “including but not limited to,” and references to appendices and numbered sections shall be to such addenda and provisions herein; all such addenda are hereby incorporated in this Agreement by reference.

 

2.

WHAT ▇.▇. ▇▇▇▇▇▇ IS REQUIRED TO DO

 

2.1

Set Up Accounts

 

(a)

▇.▇. ▇▇▇▇▇▇ will establish and maintain the following accounts ("Accounts"):

 

(i)

one or more Securities Accounts in the name of the Customer (or in another name requested by the Customer that is acceptable to ▇.▇. ▇▇▇▇▇▇) for Financial Assets, which may be held by ▇.▇. ▇▇▇▇▇▇ or a Subcustodian or a Securities Depository for ▇.▇. ▇▇▇▇▇▇ on behalf of the Customer, including as an Entitlement Holder; and

 

(ii)

one or more accounts in the name of the Customer (or in another name requested by the Customer that is acceptable to ▇.▇. ▇▇▇▇▇▇) ("Cash Account") for any and all cash in any currency received by or on behalf of ▇.▇. ▇▇▇▇▇▇ for the account of the Customer.

 

Notwithstanding paragraph 2.1(a)(ii), cash held in respect of those markets where the 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 the Customer, additional Accounts may be opened in the future, and such additional Accounts shall be subject to the terms of this Agreement.

 

(c)

In the event that the Customer requests the opening of any additional Account for the purpose of holding collateral pledged by the Customer to a securities exchange, clearing corporation, or other central counterparty (a “Counterparty”) to secure trading activity by the Customer, or the pledge to a Counterparty of cash or individual Securities held in an Account, that Account (or the pledged cash or Securities) shall be subject to the collateral arrangements in effect between ▇.▇. ▇▇▇▇▇▇ and the Counterparty in addition to the terms of this Agreement.

 

(d)

▇.▇. ▇▇▇▇▇▇’▇ obligation to open Accounts pursuant to Section 2.1(a) is conditional upon ▇.▇. ▇▇▇▇▇▇ receiving such of the following documents as ▇.▇. ▇▇▇▇▇▇ may require:

 

(i)

a certified copy of the Customer's constitutional documents as currently in force;

 

 

(ii)

evidence reasonably satisfactory to ▇.▇. ▇▇▇▇▇▇ of the due authorization and execution of this Agreement by the Customer (for example by 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 2);

 

(iii)

▇.▇. ▇▇▇▇▇▇’▇ standard form fund manager mandate completed by the fund manager designated by the Customer; 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 will be either:

 

(i)

deposited during the period it is credited to the Accounts in one or more deposit accounts at ▇.▇. ▇▇▇▇▇▇’▇ head office or at one of its non-U.S. branch offices and will constitute a debt owing to the Customer by ▇.▇. ▇▇▇▇▇▇ as a banker, provided that any cash so deposited with a non- U.S. branch office will be payable exclusively by that branch office 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; or

 

(ii)

placed by ▇.▇. ▇▇▇▇▇▇ with a bank or other financial institution in the country in which the applicable currency is issued, in which case the deposit will constitute a debt owing to the Customer by that bank or other financial institution and not ▇.▇. ▇▇▇▇▇▇, payable exclusively in the applicable currency at that bank or financial institution.

 

(b)

Any amounts credited by ▇.▇. ▇▇▇▇▇▇ to the Cash Account on the basis of a notice or an interim credit from a third party, may be reversed if ▇.▇. ▇▇▇▇▇▇ does not receive final payment in a timely manner. ▇.▇. ▇▇▇▇▇▇ will notify the Customer promptly of any such reversal.

 

2.3

Segregation of Assets; Nominee Name

 

(a)

▇.▇. ▇▇▇▇▇▇ will identify in its books that Financial Assets credited to the Customer’s Securities Account belong to the Customer (except as otherwise may be agreed by ▇.▇. ▇▇▇▇▇▇ and the Customer).

 

(b)

To the extent permitted by Applicable Law or market practice, ▇.▇. ▇▇▇▇▇▇ will require each Subcustodian to identify in its own books that Financial Assets held at such Subcustodian by ▇.▇. ▇▇▇▇▇▇ on behalf of its customers belong to customers of ▇.▇. ▇▇▇▇▇▇, such that it is readily apparent that the Financial Assets do not belong to ▇.▇. ▇▇▇▇▇▇ or the Subcustodian.

 

(c)

▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ or its Subcustodian;

 

(iv)

to register in the name of the Customer, ▇.▇. ▇▇▇▇▇▇, a Subcustodian, a Securities Depository, or their respective nominees, such Financial Assets as are customarily held in registered form; and

 

(v)

to decline to accept any asset or property which it deems to be unsuitable or inconsistent with its custodial operations.

 

2.4

Settlement of Transactions

 

Subject to Article 3 and Section 4.2 of this Agreement, ▇.▇. ▇▇▇▇▇▇ 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, the Customer authorizes ▇.▇. ▇▇▇▇▇▇ 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 the Customer acknowledges and agrees that such action alone will not of itself constitute negligence, fraud, or willful misconduct of ▇.▇. ▇▇▇▇▇▇, and the risk of loss arising from any such action will be borne by the Customer. In the case of the failure of the Customer’s counterparty (or other appropriate party) to deliver the expected consideration as agreed, ▇.▇. ▇▇▇▇▇▇ will notify the Customer of such failure. If the Customer’s counterparty continues to fail to deliver the expected consideration, ▇.▇. ▇▇▇▇▇▇ will provide information reasonably requested by the Customer that ▇.▇. ▇▇▇▇▇▇ has in its possession to allow the Customer to enforce rights that the Customer has against the Customer’s counterparty, but neither ▇.▇. ▇▇▇▇▇▇ nor its Subcustodians will be obliged to institute legal proceedings, file a proof of claim in any insolvency proceeding or take any similar action. ▇.▇. ▇▇▇▇▇▇ agrees to consult with Customer and provide the Customer with such assistance as it determines is reasonable in the circumstances (at Customer’s expense) in the event that the Customer wishes to institute legal proceedings, file a proof of claim in any insolvency proceedings, or take any similar action in its own name.

 

2.5

Contractual Settlement Date Accounting

 

(a)

▇.▇. ▇▇▇▇▇▇ will effect book entries on a contractual settlement date accounting basis as described below with respect to the settlement for those Financial Assets and transactions as to which ▇.▇. ▇▇▇▇▇▇ customarily offers contractual settlement date accounting. J.P.

 

 

▇▇▇▇▇▇ reserves the right to restrict in good faith the availability of contractual settlement date accounting for credit or operational reasons.

 

(i)

Sales: On the settlement date for a sale, ▇.▇. ▇▇▇▇▇▇ will credit the Cash Account with the proceeds of the sale and, if not already delivered, transfer the relevant Financial Assets to an account at ▇.▇. ▇▇▇▇▇▇ pending settlement of the transaction.

 

(ii)

Purchases: On the settlement date for a purchase (or earlier, if market practice requires delivery of the purchase price before the settlement date), ▇.▇. ▇▇▇▇▇▇ will debit the Cash Account for the settlement amount and credit a separate account at ▇.▇. ▇▇▇▇▇▇. ▇.▇. ▇▇▇▇▇▇ will then post the Securities Account as awaiting receipt of the expected Financial Assets. The Customer will not be entitled to the delivery of Financial Assets until ▇.▇. ▇▇▇▇▇▇ or a Subcustodian actually receives them.

 

Upon request, ▇.▇. ▇▇▇▇▇▇ shall provide the Customer with a list of those markets for which it provides contractual settlement date accounting. ▇.▇. ▇▇▇▇▇▇ may add markets to or remove markets from such list upon reasonable notice to the Customer.

 

(b)

▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ does not undertake to make loans and/or Financial Assets available to the 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, ▇.▇. ▇▇▇▇▇▇ will post the transaction on the date on which the cash or Financial Assets received as consideration for the transaction is actually received and settled by ▇.▇. ▇▇▇▇▇▇.

 

2.7

Income Collection (AutoCreditâ)

 

(a)

▇.▇. ▇▇▇▇▇▇ 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)

▇.▇. ▇▇▇▇▇▇ will credit the Cash Account with income proceeds on Financial Assets on the anticipated payment date, net of any taxes that are withheld by ▇.▇. ▇▇▇▇▇▇ or any third party (“AutoCredit”) for those Financial Assets and/or markets as to which ▇.▇. ▇▇▇▇▇▇ customarily

 

 

offers an AutoCredit service. ▇.▇. ▇▇▇▇▇▇ reserves the right to restrict in good faith the availability of AutoCredit for credit or operational reasons. Upon request, ▇.▇. ▇▇▇▇▇▇ shall provide the Customer with a list of AutoCredit eligible markets. ▇.▇. ▇▇▇▇▇▇ may add markets to or remove markets from the list of AutoCredit markets upon notice to the Customer that is reasonable in the circumstances. ▇.▇. ▇▇▇▇▇▇ may reverse AutoCredit credits upon oral or written notification to the Customer if ▇.▇. ▇▇▇▇▇▇ believes that the corresponding payment will not be received by ▇.▇. ▇▇▇▇▇▇ within a reasonable period or the credit was incorrect.

 

(c)

When the AutoCredit service is not available, income on Financial Assets, net of any taxes withheld by ▇.▇. ▇▇▇▇▇▇ or any third party, will be credited only after actual receipt and reconciliation by ▇.▇. ▇▇▇▇▇▇.

 

(d)

▇.▇. ▇▇▇▇▇▇ will use reasonable efforts to contact appropriate parties to collect unpaid interest, dividends or redemption proceeds and notify the Customer of the late payment, but neither ▇.▇. ▇▇▇▇▇▇ nor its Subcustodians will be obliged to file any formal notice of default, institute legal proceedings, file a proof of claim in any insolvency proceeding or take any similar action.

 

2.8

Miscellaneous Administrative Duties

 

(a)

Until ▇.▇. ▇▇▇▇▇▇ receives Instructions to the contrary, ▇.▇. ▇▇▇▇▇▇ will:

 

(i)

present all Financial Assets for which ▇.▇. ▇▇▇▇▇▇ 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 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, the Customer receives fractional interests in Financial Assets arising out of a Corporate Action or class action litigation, ▇.▇. ▇▇▇▇▇▇ will credit the Customer with the amount of cash it would have received had the Financial Assets not been held in an omnibus account, and the Customer shall relinquish to ▇.▇. ▇▇▇▇▇▇ its interest in such fractional interests.

 

(c)

If some, but not all, of an outstanding class of Financial Assets is called for redemption, ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ deems fair and equitable.

 

 

(d)

▇.▇. ▇▇▇▇▇▇ reserves the right to reverse any transactions that are credited to the Accounts due to mis-postings and other such similar actions.

 

2.9

Corporate Actions

 

(a)

▇.▇. ▇▇▇▇▇▇ will act in accordance with local market practice to obtain information concerning Corporate Actions that is publicly available in the local market. ▇.▇. ▇▇▇▇▇▇ also will review information obtained from sources to which it subscribes for information concerning such Corporate Actions. ▇.▇. ▇▇▇▇▇▇ will promptly provide that information (or summaries that reflect the material points concerning the applicable Corporate Action) to the Customer or its Authorized Person.

 

(b)

▇.▇. ▇▇▇▇▇▇ will act in accordance with the Customer’s Instructions in relation to such Corporate Actions. If the Customer fails to provide ▇.▇. ▇▇▇▇▇▇ with timely Instructions with respect to any Corporate Action, neither ▇.▇. ▇▇▇▇▇▇ nor its Subcustodians or their respective nominees will take any action in relation to that Corporate Action, except as otherwise agreed in writing by ▇.▇. ▇▇▇▇▇▇ and the Customer or as may be set forth by ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇’▇ 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 the Customer if ▇.▇. ▇▇▇▇▇▇, using reasonable care and diligence in the circumstances, identifies that the Customer was a shareholder and held the relevant Financial Assets in custody with ▇.▇. ▇▇▇▇▇▇ at the relevant time. ▇.▇. ▇▇▇▇▇▇ will not make filings in the name of the Customer in respect to such notifications except as otherwise agreed in writing between the Customer and ▇.▇. ▇▇▇▇▇▇. The services set forth in this Section 2.10 are available only in certain markets, details of which are available from ▇.▇. ▇▇▇▇▇▇ on request.

 

2.11

Proxies

 

(a)

▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ on request. Provision of the Proxy Voting Service is conditional upon receipt by ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ on a case by case basis.

 

(d)

The 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 ▇.▇. ▇▇▇▇▇▇ 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)

▇.▇. ▇▇▇▇▇▇ being required to vote all shares held for a particular issue for all of ▇.▇. ▇▇▇▇▇▇’▇ 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, ▇.▇. ▇▇▇▇▇▇ will notify the Customer.

 

2.12

Statements of Account

 

(a)

▇.▇. ▇▇▇▇▇▇ will provide the Customer with electronic access to Account information (the “Information”) that will enable the Customer to generate or receive reports and statements of account for each Account, identifying cash and Financial Assets held in the Account as well as Account transactions. The Customer will review the Information and give ▇.▇. ▇▇▇▇▇▇ written notice of (i) any suspected error or omission or (ii) the Customer’s inability to access any such Information. The Customer will provide ▇.▇. ▇▇▇▇▇▇ such notice within a reasonable time after (x) the Information is made available to the Customer or (y) the Customer discovers that it is unable to access the Information, as the case may be.

 

(b)

The Customer acknowledges that information available to it electronically 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. ▇.▇. ▇▇▇▇▇▇ will not be liable for any loss or damage arising out of any such information accessed electronically that is subsequently updated or corrected by the close of business on the first business day after the original transaction was posted.

 

2.13

Access to ▇.▇. ▇▇▇▇▇▇'▇ Records

 

(a)

▇.▇. ▇▇▇▇▇▇ will allow the Customer's auditors and independent public accountants such reasonable access to the records of ▇.▇. ▇▇▇▇▇▇ relating to the Accounts as may be required in connection with their examination of books and records pertaining to the Customer's affairs. Subject to restrictions under the relevant local law, ▇.▇. ▇▇▇▇▇▇ shall

 

 

direct any Subcustodian to permit the 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)

▇.▇. ▇▇▇▇▇▇ will, upon reasonable written notice, allow the Customer reasonable access during normal working hours to the records of ▇.▇. ▇▇▇▇▇▇ relating to the Accounts. ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ for the reasonable cost of copying, collating and researching archived information.

 

2.14

Maintenance of Financial Assets at Subcustodian Locations

 

(a)

Unless Instructions require another location acceptable to ▇.▇. ▇▇▇▇▇▇, 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 located. ▇.▇. ▇▇▇▇▇▇ 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. ▇.▇. ▇▇▇▇▇▇ may modify Schedule 1 to this Agreement upon notice to the Customer.

 

(b)

▇.▇. ▇▇▇▇▇▇ reserves the right to restrict the services it provides in certain markets that are deemed by ▇.▇. ▇▇▇▇▇▇ to be restricted markets from time to time. A current list of these markets, and a summary of the related restrictions, is set forth on Schedule 3. ▇.▇. ▇▇▇▇▇▇ may update Schedule 3 from time to time upon notice to the Customer.

 

2.15

Tax Relief Services

 

▇.▇. ▇▇▇▇▇▇ will provide tax relief services as provided in Section 8.2.

 

2.16

Foreign Exchange Transactions

 

To facilitate the administration of the Customer's trading and investment activity, ▇.▇. ▇▇▇▇▇▇ may, but will not be obliged to, enter into spot or forward foreign exchange contracts with the Customer, or an Authorized Person, and may also provide foreign exchange contracts and facilities through its Affiliates or Subcustodians; provided that, subject to ▇.▇. ▇▇▇▇▇▇’▇ business consideration, ▇.▇. ▇▇▇▇▇▇ will endeavor to enter into foreign exchange contracts as requested by Customer and such contracts will be in accordance with the terms as indicated in the ▇.▇. ▇▇▇▇▇▇ Foreign Exchange Pricing Agreement with Customer which may be amended from time to time. In all cases where ▇.▇. ▇▇▇▇▇▇ or its Affiliates or Subcustodians enter into foreign exchange contracts or facilities with the Customer, ▇.▇. ▇▇▇▇▇▇ will not be executing or otherwise placing any foreign exchange transaction as the Customer’s agent, and the terms and conditions of such foreign exchange

 

 

contracts or facilities (as the case may be) will apply to such transactions. With respect to the Customer’s foreign exchange contracts or facilities with ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ will be acting as the Customer’s principal counterparty on such foreign exchange contracts or facilities (as the case may be).

 

2.17

Notifications

 

If the Customer has agreed to access information concerning the Accounts through ▇.▇. ▇▇▇▇▇▇’▇ website, except as required in Section 10.1 of the Agreement, ▇.▇. ▇▇▇▇▇▇ may make any notifications required under this Agreement by posting it on the website or by other electronic means acceptable to ▇.▇. ▇▇▇▇▇▇ as may be reasonably requested in writing by Customer.

 

2.18

Sealed Envelopes

 

From time to time, at the Customer’s request, ▇.▇. ▇▇▇▇▇▇ may agree to hold certain Sealed Envelopes in custody for the Customer. Notwithstanding anything in this Agreement to the contrary, ▇.▇. ▇▇▇▇▇▇’▇ sole responsibility with regards to Sealed Envelopes will be to hold them in ▇.▇. ▇▇▇▇▇▇’▇ or in a Subcustodian’s possession. ▇.▇. ▇▇▇▇▇▇ shall not be responsible for verifying the content of any Sealed Envelope purported to contain assets or assessing the value, validity or transferability of any such assets (including the existence or value of any investments contained in any Sealed Envelope). With respect to Sealed Envelopes, neither ▇.▇. ▇▇▇▇▇▇ nor its Subcustodians will be obligated to perform any service or action described in this Agreement, including, but not limited to, asset servicing, tax services, corporate actions, income or dividend collection, settlement services or class action litigation.

 

3.

INSTRUCTIONS

 

3.1

Acting on Instructions; Method of Instruction and Unclear Instructions

 

(a)

The Customer authorizes ▇.▇. ▇▇▇▇▇▇ to accept, rely upon and/or act upon any Instructions received by it without inquiry. The Customer will indemnify the ▇.▇. ▇▇▇▇▇▇ Indemnitees against, and hold each of them harmless from, any Liabilities that may be imposed on, incurred by, or asserted against the ▇.▇. ▇▇▇▇▇▇ Indemnitees as a result of any action or omission taken in accordance with any Instruction.

 

(b)

To the extent possible, instructions to ▇.▇. ▇▇▇▇▇▇ shall be sent via electronic instruction or trade information system acceptable to ▇.▇. ▇▇▇▇▇▇ or via facsimile transmission. Where reasonably practicable, the Customer will use automated and electronic methods of sending Instructions.

 

(c)

▇.▇. ▇▇▇▇▇▇ shall promptly notify an Authorized Person if ▇.▇. ▇▇▇▇▇▇ determines that an Instruction does not contain all information reasonably necessary for ▇.▇. ▇▇▇▇▇▇ to carry out the Instruction. ▇.▇. ▇▇▇▇▇▇ may decline to act upon an Instruction if it does not receive clarification or confirmation satisfactory to it. ▇.▇. ▇▇▇▇▇▇ will not be liable for any loss arising from any reasonable delay in carrying out any

 

 

such Instruction while it seeks information, clarification or confirmation or in declining to act upon any Instruction for which it does not receive clarification satisfactory to it.

 

3.2

Verification and Security Procedures

 

(a)

▇.▇. ▇▇▇▇▇▇ and the Customer shall comply with any applicable Security Procedures with respect to the delivery or authentication of Instructions and shall ensure that any codes, passwords or similar devices are reasonably safeguarded.

 

(b)

Either party may record any of their telephone communications.

 

3.3

Instructions; Contrary to Law/Market Practice

 

▇.▇. ▇▇▇▇▇▇ need not act upon Instructions which it reasonably believes to be contrary to law, regulation or market practice, and ▇.▇. ▇▇▇▇▇▇ shall be under no duty to investigate whether any Instructions comply with Applicable Law or market practice. In the event ▇.▇. ▇▇▇▇▇▇ does not act upon such Instructions, ▇.▇. ▇▇▇▇▇▇ will notify the Customer where reasonably practicable.

 

3.4

Cut-Off Times

 

▇.▇. ▇▇▇▇▇▇ has established cut-off times for receipt of Instructions, which will be made available to the Customer. If ▇.▇. ▇▇▇▇▇▇ receives an Instruction after its established cut-off time, ▇.▇. ▇▇▇▇▇▇ will attempt to act upon the Instruction on the day requested if ▇.▇. ▇▇▇▇▇▇ deems it practicable to do so or otherwise as soon as practicable after that day.

 

3.5

Electronic Access

 

Access by the Customer to certain applications or products of ▇.▇. ▇▇▇▇▇▇ via ▇.▇. ▇▇▇▇▇▇’▇ web site or otherwise shall be governed by this Agreement and the terms and conditions set forth in Annex A.

 

4.

FEES, EXPENSES AND OTHER AMOUNTS OWING TO ▇.▇. ▇▇▇▇▇▇

 

4.1

Fees and Expenses

 

The Customer will pay ▇.▇. ▇▇▇▇▇▇ for its services under this Agreement such fees as may be agreed upon in writing from time to time, together with ▇.▇. ▇▇▇▇▇▇'▇ 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. Invoices will be payable within thirty (30) days of the date of the invoice. If the Customer disputes an invoice it shall nevertheless pay on or before the date that payment is due such portion of the invoice that is not subject to a bona fide dispute. ▇.▇. ▇▇▇▇▇▇ may deduct amounts invoiced from the Cash Account except to the extent that the Customer has 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). Without prejudice to ▇.▇. ▇▇▇▇▇▇’▇ other rights, ▇.▇. ▇▇▇▇▇▇ reserves the right to charge interest on overdue amounts from the

 

 

due date until actual payment at such rate as ▇.▇. ▇▇▇▇▇▇ customarily charges for similar overdue amounts.

 

4.2

Overdrafts

 

If a debit to any currency in the Cash Account results in a debit balance, then ▇.▇. ▇▇▇▇▇▇ may, in its discretion, (i) advance an amount equal to the overdraft, (ii) 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 ▇.▇. ▇▇▇▇▇▇ elects to make such an advance, the advance will be deemed a loan to the Customer, payable on demand, bearing interest at the applicable rate charged by ▇.▇. ▇▇▇▇▇▇ from time to time, for such overdrafts, from the date of such advance to the date of payment (including after the date any judgment may be entered against the Customer with respect to any overdraft) and otherwise on the terms on which ▇.▇. ▇▇▇▇▇▇ makes similar overdrafts available from time to time. No prior action or course of dealing on ▇.▇. ▇▇▇▇▇▇’▇ part with respect to the settlement of transactions on the Customer’s behalf will be asserted by the Customer against ▇.▇. ▇▇▇▇▇▇ for ▇.▇. ▇▇▇▇▇▇’▇ refusal to make advances to the Cash Account or to settle any transaction for which the Customer does not have sufficient available funds in the applicable currency in the Account. The Customer shall be deemed to be in default with respect to any such advance upon the occurrence of any event of the type specified in section 365(e)(1) of the U.S. Bankruptcy Code, as amended from time to time.

 

4.3

▇.▇. ▇▇▇▇▇▇’▇ Right Over Securities; Set-off

 

(a)

Without prejudice to ▇.▇. ▇▇▇▇▇▇’▇ rights under Applicable Law, ▇.▇. ▇▇▇▇▇▇ and its Affiliates shall have, and the Customer grants to ▇.▇. ▇▇▇▇▇▇ a first priority, perfected and continuing security interest in and a lien on all cash, Financial Assets and any other property of every kind that are credited to the Account or otherwise held for the Customer by ▇.▇. ▇▇▇▇▇▇ (“Account Assets”) as security for any and all Liabilities of the Customer to ▇.▇. ▇▇▇▇▇▇ or any of its Affiliates, and ▇.▇. ▇▇▇▇▇▇ shall be entitled without notice to the Customer, to withhold delivery of such Account Assets, sell or otherwise realize any of such Account Assets and to apply the proceeds and any other monies credited to the Cash Account in satisfaction of such Liabilities; provided, where practicable, ▇.▇. ▇▇▇▇▇▇ will endeavor to apprise the Customer prior to any action being initiated in connection with the foregoing. For this purpose, ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇’▇ rights under Applicable Law, ▇.▇. ▇▇▇▇▇▇ may set off against any Liabilities of the Customer to ▇.▇. ▇▇▇▇▇▇ or any of its Affiliates, any amount in any currency (i) standing to the credit of any of the Customer’s accounts (whether deposit or otherwise) with any ▇.▇. ▇▇▇▇▇▇ branch or office or with any Affiliate of ▇.▇. ▇▇▇▇▇▇ or (ii) owed to the Customer by any ▇.▇. ▇▇▇▇▇▇ branch or office or by any Affiliate of ▇.▇. ▇▇▇▇▇▇. For this purpose, ▇.▇. ▇▇▇▇▇▇ 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)

▇.▇. ▇▇▇▇▇▇ is authorized under this Agreement to act through and hold the Customer's Financial Assets with Subcustodians. ▇.▇. ▇▇▇▇▇▇ will use reasonable care in the selection, monitoring and continued appointment of such Subcustodians. In addition, ▇.▇. ▇▇▇▇▇▇ and each Subcustodian may deposit Securities with, and hold Securities in any Securities Depository on such terms as such Securities Depository customarily operates and the Customer will provide ▇.▇. ▇▇▇▇▇▇ with such documentation or acknowledgements that ▇.▇. ▇▇▇▇▇▇ may require to hold the Financial Assets in such Securities Depository.

 

(b)

Unless required otherwise by Applicable law in the relevant market, any agreement ▇.▇. ▇▇▇▇▇▇ enters into with a Subcustodian for holding ▇.▇. ▇▇▇▇▇▇’▇ 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. ▇.▇. ▇▇▇▇▇▇ 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 the Customer’s assets. Where a Subcustodian deposits Securities with a Securities Depository, ▇.▇. ▇▇▇▇▇▇ will cause the Subcustodian to identify on its records that the Securities deposited by the Subcustodian at such Securities Depository belong to ▇.▇. ▇▇▇▇▇▇, as agent. This Section 5.1(b) will not apply to the extent of any special agreement or arrangement made by the Customer with any particular Subcustodian.

 

(c)

Subject to Section 2.20, ▇.▇. ▇▇▇▇▇▇ 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, ▇.▇. ▇▇▇▇▇▇ will make reasonable efforts, in its discretion, to seek recovery from the Securities Depository, but ▇.▇. ▇▇▇▇▇▇ 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), ▇.▇. ▇▇▇▇▇▇ will be liable for direct losses incurred by the 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 Bank.

 

(b)

Subject to Section 5.1(a) and ▇.▇. ▇▇▇▇▇▇’▇ 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 ▇.▇. ▇▇▇▇▇▇ in its oversight process, ▇.▇. ▇▇▇▇▇▇ will not be responsible for any losses (whether direct or indirect) incurred by the Customer that result from the insolvency of any Subcustodian which is not a branch or an Affiliated Subcustodian Bank.

 

(c)

▇.▇. ▇▇▇▇▇▇ reserves the right to add, replace or remove Subcustodians. ▇.▇. ▇▇▇▇▇▇ will give prompt notice of any such action, which will be advance notice if practicable. Upon request by the Customer, ▇.▇. ▇▇▇▇▇▇ 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

 

6.1

Representations of the Customer and ▇.▇. ▇▇▇▇▇▇

 

(a)

The Customer represents, warrants and covenants that (i) it has full authority and power, and has obtained all necessary authorizations and consents, to deposit and control the Financial Assets, Sealed Envelopes and cash in the Accounts, to use ▇.▇. ▇▇▇▇▇▇ as its custodian in accordance with the terms of this Agreement, to borrow money (either 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 ▇.▇. ▇▇▇▇▇▇, this Agreement is the Customer’s legal, valid and binding obligation, enforceable against the Customer 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 ▇.▇. ▇▇▇▇▇▇ or any person on its behalf, and acknowledges that this Agreement sets out to the fullest extent the duties of ▇.▇. ▇▇▇▇▇▇; (iv) it is a resident of the United States and shall notify ▇.▇. ▇▇▇▇▇▇ of any changes in residency; (v) the Financial Assets, Sealed Envelopes and cash deposited in the Accounts (other than those assets held in Accounts established pursuant to certain account control agreements (“Control Account Assets”) among the Customer, ▇.▇. ▇▇▇▇▇▇ and secured party named therein) are not subject to any

 

 

encumbrance or security interest whatsoever and the Customer undertakes that, so long as Liabilities of the Customer under or in connection with this Agreement are outstanding, it will not create or permit to subsist any encumbrance or security interest over such Financial Assets, Sealed Envelopes or cash (other than Control Account Assets); (vi) no delivery of Securities by the Customer to ▇.▇. ▇▇▇▇▇▇ and no Instruction by the Customer with respect to such Securities will contravene Applicable Law; and (vii) none of the Financial Assets, Sealed Envelopes and cash to be held under this Agreement are “plan assets” as defined in Section 3(42) of the Employee Retirement Income Security Act of 1974, as amended, or the regulations thereunder except as otherwise expressly notified to ▇.▇. ▇▇▇▇▇▇.

 

▇.▇. ▇▇▇▇▇▇ may rely upon the certification of such other facts as may be required to administer ▇.▇. ▇▇▇▇▇▇'▇ obligations under this Agreement and the Customer shall indemnify ▇.▇. ▇▇▇▇▇▇ against all losses, liability, claims or demands arising directly or indirectly from any such certifications.

 

(b)

▇.▇. ▇▇▇▇▇▇ represents and warrants that (i) assuming execution and delivery of this Agreement by the Customer, this Agreement is ▇.▇. ▇▇▇▇▇▇’▇ legal, valid and binding obligation, enforceable against ▇.▇. ▇▇▇▇▇▇ 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

The Customer is Liable to ▇.▇. ▇▇▇▇▇▇ Even if it is Acting for Another Person

 

If the 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, ▇.▇. ▇▇▇▇▇▇ nevertheless will treat the Customer as its principal for all purposes under this Agreement. In this regard, the Customer will be liable to ▇.▇. ▇▇▇▇▇▇ as a principal in respect of any transactions relating to the Account. The foregoing will not affect any rights ▇.▇. ▇▇▇▇▇▇ might have against the Customer's principal or the other person envisaged by Section 2.1(a).

 

6.3

Special Settlement Services

 

▇.▇. ▇▇▇▇▇▇ may, but shall not be obliged to, make available to the Customer from time to time special settlement services (including continuous linked settlement) for transactions involving Securities, cash, foreign exchange, and other instruments or contracts. The Customer shall comply, and shall cause its Authorized Persons to comply, with the requirements of any external settlement agency through which such settlements may be processed, including, without limitation, its rules and by-laws, where applicable.

 

7.

WHEN ▇.▇. ▇▇▇▇▇▇ IS LIABLE TO THE CUSTOMER

 

7.1

Standard of Care; Liability

 

(a)

▇.▇. ▇▇▇▇▇▇ will use reasonable care in performing its obligations under this Agreement. ▇.▇. ▇▇▇▇▇▇ 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)

▇.▇. ▇▇▇▇▇▇ will be liable for the Customer’s direct damages to the extent they result from ▇.▇. ▇▇▇▇▇▇’▇ 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 ▇.▇. ▇▇▇▇▇▇ 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, ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, or ▇.▇. ▇▇▇▇▇▇’▇ role as custodian.

 

(c)

The Customer will indemnify the ▇.▇. ▇▇▇▇▇▇ Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of the ▇.▇. ▇▇▇▇▇▇ Indemnitees in connection with or arising out of (i) ▇.▇. ▇▇▇▇▇▇’▇ performance under this Agreement, provided the ▇.▇. ▇▇▇▇▇▇ Indemnitees have not acted with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question or (ii) any ▇.▇. ▇▇▇▇▇▇ Indemnitee’s status as a holder of record of the Customer’s Financial Assets. Nevertheless, the Customer will not be obligated to indemnify any ▇.▇. ▇▇▇▇▇▇ Indemnitee under the preceding sentence with respect to any Liability for which ▇.▇. ▇▇▇▇▇▇ is liable under Section 5.2(a) of this Agreement.

 

(d)

The Customer agrees that ▇.▇. ▇▇▇▇▇▇ provides no service in relation to, and therefore has no duty or responsibility to: (i) question Instructions or make any suggestions to the 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 the 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; and (iv) evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which ▇.▇. ▇▇▇▇▇▇ is instructed to deliver Financial Assets or cash. ▇.▇. ▇▇▇▇▇▇ is not responsible or liable in any way for the genuineness or validity of any Security or instrument received, delivered or held by ▇.▇. ▇▇▇▇▇▇ in physical form that appears to be genuine and valid.

 

7.2

Force Majeure

 

▇.▇. ▇▇▇▇▇▇ 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. ▇.▇. ▇▇▇▇▇▇ will have no liability, however, for any damage, loss, expense or liability of any nature that the 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 (other than on the part of ▇.▇. ▇▇▇▇▇▇ or its employees), malfunction of equipment or software (except where such malfunction is primarily and directly attributable to ▇.▇. ▇▇▇▇▇▇’▇ negligence in maintaining the equipment or software), currency re-denominations, 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 other cause beyond the reasonable control of ▇.▇. ▇▇▇▇▇▇ (including without limitation, the non-availability of appropriate foreign exchange).

 

7.3

▇.▇. ▇▇▇▇▇▇ May Consult With Counsel

 

▇.▇. ▇▇▇▇▇▇ will be entitled to rely on, and may act upon the advice of professional advisors in relation to matters of law, regulation or market practice (which may be the professional advisors of the Customer), and will not be liable to the Customer under this Agreement for any action taken or omitted pursuant to such advice.

 

7.4

▇.▇. ▇▇▇▇▇▇ Provides Diverse Financial Services and May Generate Profits as a Result

 

The Customer hereby authorizes ▇.▇. ▇▇▇▇▇▇ to act under this Agreement notwithstanding that: (a) ▇.▇. ▇▇▇▇▇▇ or any of its divisions, branches or Affiliates may have a material interest in transactions entered into by the Customer with respect to the Account or that circumstances are such that ▇.▇. ▇▇▇▇▇▇ may have a potential conflict of duty or interest, including the fact that ▇.▇. ▇▇▇▇▇▇ 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 and (b) ▇.▇. ▇▇▇▇▇▇ 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 the Customer. ▇.▇. ▇▇▇▇▇▇ is not under any duty to disclose any such information.

 

7.5

Assets Held Outside ▇.▇. ▇▇▇▇▇▇’▇ Control

 

▇.▇. ▇▇▇▇▇▇ will not be obliged to (a) hold Financial Assets or cash with any person not agreed to by ▇.▇. ▇▇▇▇▇▇ or (b) register or record Financial Assets in the name of any person not agreed to by ▇.▇. ▇▇▇▇▇▇. Furthermore, ▇.▇. ▇▇▇▇▇▇ will not be obliged to register or record on ▇.▇. ▇▇▇▇▇▇’▇ records Financial Assets held outside ▇.▇. ▇▇▇▇▇▇’▇ control. If, however, the Customer makes any such request and ▇.▇. ▇▇▇▇▇▇ agrees to the request, the consequences of doing so will be at the Customer’s own risk. ▇.▇. ▇▇▇▇▇▇ shall 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

 

▇.▇. ▇▇▇▇▇▇ and its Subcustodians may use third party delivery services and providers of information regarding non-core custody services matters such as pricing, proxy voting, corporate actions and class action litigation and use local agents to provide extraordinary services such as attendance at annual meetings of issuers of Securities. Although ▇.▇. ▇▇▇▇▇▇ will use reasonable care (and cause its Subcustodians to use reasonable care) in the selection and retention

 

 

of such third party providers and local agents, it will not be responsible for any errors or omissions made by them in providing the relevant information or services.

 

7.7

Service Locations

 

▇.▇. ▇▇▇▇▇▇ maintains various operational/service centers and locations through the United States and foreign jurisdictions. The services provided under this Agreement may be provided from one or more such locations. ▇.▇. ▇▇▇▇▇▇ may change the operational/service centers and locations as it deems necessary or appropriate for its business concerns.

 

8.

TAXATION

 

8.1

Tax Obligations

 

(a)

The Customer will pay or reimburse ▇.▇. ▇▇▇▇▇▇, and confirms that ▇.▇. ▇▇▇▇▇▇ 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 Customer's Accounts.

 

(b)

The Customer will provide to ▇.▇. ▇▇▇▇▇▇ such certifications, declarations, 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 Customer undertakes to notify ▇.▇. ▇▇▇▇▇▇ immediately if any information requires updating or correcting. ▇.▇. ▇▇▇▇▇▇ 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 the Customer or any third party; (ii) provision to ▇.▇. ▇▇▇▇▇▇ or a third party of inaccurate or misleading information by the Customer or any third party; (iii) the withholding of material information by the Customer or any third party; or (iv) any delay by any revenue authority or any other cause beyond ▇.▇. ▇▇▇▇▇▇’▇ control.

 

(c)

If ▇.▇. ▇▇▇▇▇▇ 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)

The 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 ▇.▇. ▇▇▇▇▇▇ will be responsible for any penalty or additions to tax due solely as a result of ▇.▇. ▇▇▇▇▇▇’▇ 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, ▇.▇. ▇▇▇▇▇▇ will provide (i) a “relief at source” service to obtain a reduction of withholding tax withheld as may be available in the applicable market in respect of income payments on Financial Assets credited to the Securities Account that ▇.▇. ▇▇▇▇▇▇ believes may be available to the Customer and/or (ii) a tax reclaim service on certain qualifying Financial Assets. To defray expenses pertaining to nominal tax claims, ▇.▇. ▇▇▇▇▇▇ may from time-to-time set minimum thresholds as to a de minimis 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 ▇.▇. ▇▇▇▇▇▇ is conditional upon ▇.▇. ▇▇▇▇▇▇ receiving from the Customer (i) a declaration of its identity and place of residence and (ii) certain other documentation (pro forma copies of which are available from ▇.▇. ▇▇▇▇▇▇), prior to the receipt of Financial Assets in the Account and/or the payment of income.

 

(c)

▇.▇. ▇▇▇▇▇▇ will perform tax relief services only with respect to taxation levied by the revenue authorities of the countries advised to the Customer from time to time and ▇.▇. ▇▇▇▇▇▇ 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, ▇.▇. ▇▇▇▇▇▇ will have no responsibility with regard to the Customer’s tax position or status in any jurisdiction.

 

9.

TERMINATION

 

9.1

Termination

 

(a)

Either party may terminate this Agreement on sixty (60) days' written notice to the other party; provided the Customer shall pay a termination fee to ▇.▇. ▇▇▇▇▇▇ in the amount of (i) $500,000 (U.S.) if the Customer provides such written notice within one hundred and eighty (180) days from and including the date on which ▇.▇. ▇▇▇▇▇▇ commenced providing services under this Agreement or (ii) $250,000 (U.S.) if the Customer provides such written notice during the subsequent one hundred and eighty (180) days. For the avoidance of doubt, in the event ▇.▇. ▇▇▇▇▇▇ terminates the Agreement pursuant to this Section 9.1(a), the Customer will not be required to pay the above termination fee.

 

(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, being subject to an involuntary order for the transfer of all or part of its business by a statutory authority, having any of its issued shares suspended from trading on any exchange on which they are listed (if applicable) or being the subject of a similar measure; and

 

(iii)

▇.▇. ▇▇▇▇▇▇ may terminate this Agreement on thirty (30) days’ written notice to the Customer in the event that ▇.▇. ▇▇▇▇▇▇ reasonably determines that the Customer has ceased to satisfy ▇.▇. ▇▇▇▇▇▇’▇ customary credit requirements.

 

9.2

Exit Procedure

 

The Customer will provide ▇.▇. ▇▇▇▇▇▇ full details of the persons to whom ▇.▇. ▇▇▇▇▇▇ must deliver Financial Assets and cash within a reasonable period before the effective time of termination of this Agreement. If the Customer fails to provide such details in a timely manner, ▇.▇. ▇▇▇▇▇▇ 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 its successor custodian, but ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ is unwilling to assume any related credit risk. ▇.▇. ▇▇▇▇▇▇ will in any event be entitled to deduct any amounts owing to it prior to delivery of the Financial Assets and cash (and, accordingly, ▇.▇. ▇▇▇▇▇▇ will be entitled to sell Financial Assets and apply the sale proceeds in satisfaction of amounts owing to it). The Customer will reimburse ▇.▇. ▇▇▇▇▇▇ promptly for all reasonable 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

Notices

 

Notices pursuant to Section 9 of this Agreement shall be sent or served by registered mail, overnight delivery services, such as Federal Express (FedEx) or United Parcel Service (UPS), etc., courier services 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.

 

10.2

Successors and Assigns

 

This Agreement will be binding on each of the parties' successors and assigns. The parties agree that neither party can assign or otherwise transfer any of its

 

 

rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; except ▇.▇. ▇▇▇▇▇▇ may assign this Agreement without the Customer’s consent to (a) any Affiliate or subsidiary of ▇.▇. ▇▇▇▇▇▇ or (b) in connection with a merger, reorganization, stock sale or sale of all or substantially all of ▇.▇. ▇▇▇▇▇▇’▇ custody business.

 

10.3

Entire Agreement

 

This Agreement, including the Schedules, Exhibits, and Riders (and any separate agreement which ▇.▇. ▇▇▇▇▇▇ and the Customer may enter into with respect to any Cash Account), sets out the entire Agreement between the parties in connection with the subject matter hereof, and this Agreement supersedes any other agreement, statement or representation relating to custody, whether oral or written. Amendments must be in writing and, except where this Agreement provides for amendments by notice from ▇.▇. ▇▇▇▇▇▇, signed by both parties.

 

10.4

Information Concerning Deposits at ▇.▇. ▇▇▇▇▇▇’▇ Non-US Branch

 

Under U.S. federal law, deposit accounts that the Customer maintains in ▇.▇. ▇▇▇▇▇▇’▇ foreign branches (outside of the U.S.) are not insured by the Federal Deposit Insurance Corporation. In the event of ▇.▇. ▇▇▇▇▇▇’▇ liquidation, foreign branch deposits have a lesser preference than U.S. deposits, and such foreign deposits are subject to cross-border risks.

 

10.5

Insurance

 

The Customer acknowledges that ▇.▇. ▇▇▇▇▇▇ will not be required to maintain any insurance coverage specifically for the benefit of the Customer. ▇.▇. ▇▇▇▇▇▇ will, however, provide summary information regarding its own general insurance coverage to the Customer upon written request.

 

10.6

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, ▇.▇. ▇▇▇▇▇▇ is instructed not to disclose the name, address or Security positions of the Customer in response to shareholder communications requests regarding the Account.

 

10.7

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 ▇.▇. ▇▇▇▇▇▇ to implement reasonable procedures to verify the identity of any person that opens a new Account with it. Accordingly, the Customer acknowledges that Section 326 of the USA PATRIOT Act and ▇.▇. ▇▇▇▇▇▇’▇ identity verification procedures require ▇.▇. ▇▇▇▇▇▇ to obtain information which may be used to confirm the Customer's identity, including without limitation the Customer's name, address and organizational documents (“identifying information”). The Customer may also be asked to provide information about its financial status such as its current audited and unaudited financial statements. The Customer agrees to provide ▇.▇. ▇▇▇▇▇▇ with and

 

 

consents to ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇.

 

10.8

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 the Customer or ▇.▇. ▇▇▇▇▇▇ may now or hereafter be entitled to claim, for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process, the Customer or ▇.▇. ▇▇▇▇▇▇ shall not claim, and it hereby irrevocably waives, such immunity.

 

10.9

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.

 

10.10

Confidentiality

 

(a)

Subject to Clause 10.10(b) ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇’▇ business, or with the consent of the Customer.

 

(b)

The Customer authorizes ▇.▇. ▇▇▇▇▇▇ 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 ▇.▇. ▇▇▇▇▇▇ believes it is reasonably required in connection with ▇.▇. ▇▇▇▇▇▇’▇ provision of relevant services under this Agreement;

 

(ii)

its professional advisors, auditors or public accountants;

 

(iii)

its Affiliates and branches; 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, including, without limitation, any commercial terms, of this Agreement in confidence.

 

10.11

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.

 

10.12

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.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date set forth above.

 

	ON BEHALF OF EACH TRUST LISTED ON SCHEDULE A ATTACHED TO THIS AGREEMENT
	By:
	Name:
	Title:
	Date:
	JPMORGAN CHASE BANK, N.A.
	By:
	Name:
	Title:
	Date:

 

 

SCHEDULE A – LIST OF CUSTOMERS AS OF MARCH 1, 2013

 

THE ▇▇▇▇▇ FUND, INC.

THE ▇▇▇▇▇ TOTAL RETURN FUND, INC.

 

 

SCHEDULE 1

 

List of Subcustodians and Markets Used by ▇.▇. ▇▇▇▇▇▇

 

 

SCHEDULE 2

 

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. ("▇.▇. ▇▇▇▇▇▇") 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 ▇.▇. ▇▇▇▇▇▇ 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 Authorized Persons (as defined therein) and details of persons authorized to give instructions on behalf of the Company had been provided to ▇.▇. ▇▇▇▇▇▇. Details of any Fund Managers and Advisers had also been provided to ▇.▇. ▇▇▇▇▇▇. The indemnities given to ▇.▇. ▇▇▇▇▇▇ 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 authorized, 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 ▇.▇. ▇▇▇▇▇▇ to enable ▇.▇. ▇▇▇▇▇▇ 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.

 

 

SCHEDULE 3

 

▇.▇. ▇▇▇▇▇▇ Worldwide Securities Services Custody Restricted Markets Schedule

 

The following table identifies certain markets that ▇.▇. ▇▇▇▇▇▇ has determined to be restricted markets and provides summary information about the nature of the restrictions applicable in each. ▇.▇. ▇▇▇▇▇▇ reserves the right to update this Schedule from time to time upon notice to Customer.

 

Market	Restrictions
Costa Rica	Local currency will be held in one or more separate cash accounts that ▇.▇. ▇▇▇▇▇▇ opens for the benefit of its customers with ▇.▇. ▇▇▇▇▇▇’▇ Costa Rican Subcustodian. If ▇.▇. ▇▇▇▇▇▇’▇ Costa Rican Subcustodian exits the market or becomes an unacceptable provider of subcustody services, ▇.▇. ▇▇▇▇▇▇ may cease to provide custody services with respect to Securities that are safekept in Costa Rica. Although ▇.▇. ▇▇▇▇▇▇ will work with customers to mitigate the impact of any decision to exit the market, it may not be practicable to give significant advance notice of the exit.
Iceland	Until further notice from ▇.▇. ▇▇▇▇▇▇, no deposits of Icelandic currency will be held in the Customer’s Cash Account except for the proceeds of sales of Icelandic Securities or where income and corporate action proceeds are paid in local currency.   Until further notice from ▇.▇. ▇▇▇▇▇▇, any credit of Icelandic currency to the Customer’s Cash Account with ▇.▇. ▇▇▇▇▇▇ will be conditional and subject to reversal by ▇.▇. ▇▇▇▇▇▇ upon notice to Customer except to the extent that the funds are able to be applied at Customer’s Instruction to the purchase of Icelandic Securities or ▇.▇. ▇▇▇▇▇▇ is able to repatriate the funds from ▇.▇. ▇▇▇▇▇▇’▇ Icelandic Subcustodian via a foreign exchange transaction (upon Instruction received from Customer). In this regard, Customer will be entitled to no more than Customer’s pro rata share of any recoveries that ▇.▇. ▇▇▇▇▇▇ is able to obtain, as reasonably determined by ▇.▇. ▇▇▇▇▇▇.
Lithuania	Until further notice from ▇.▇. ▇▇▇▇▇▇, no deposits of Lithuanian currency will be held in the Customer’s Cash Account except for any existing balances and future proceeds of sales of Securities safekept in Lithuania (“Lithuanian Securities”) or where income and corporate action proceeds are paid in local currency.   Until further notice from ▇.▇. ▇▇▇▇▇▇, any credit of Lithuanian currency to Customer’s Cash Account with ▇.▇. ▇▇▇▇▇▇ will be conditional and subject to reversal by ▇.▇. ▇▇▇▇▇▇ upon notice to Customer except to the extent that the funds are able to be applied at Customer’s direction to the purchase of Lithuanian Securities or ▇.▇. ▇▇▇▇▇▇ is able to repatriate the funds from ▇.▇. ▇▇▇▇▇▇’▇ Lithuanian Subcustodian via a foreign exchange transaction (upon Instruction received from Customer). In this regard, Customer will be entitled to no more than Customer’s pro rata share of any recoveries that ▇.▇. ▇▇▇▇▇▇ is able to obtain, as reasonably determined by ▇.▇. ▇▇▇▇▇▇.
Malawi	Local currency will be held in one or more separate cash accounts that ▇.▇. ▇▇▇▇▇▇ opens for the benefit of its customers with ▇.▇. ▇▇▇▇▇▇’▇ Malawi Subcustodian.   Due to unclear standards in the Malawi market with respect to the completion and submission of corporate action elections, ▇.▇. ▇▇▇▇▇▇ will be subject to a “reasonable efforts” standard of care with respect to any Corporate Action related to Securities safekept in Malawi (“Malawi Securities”).   If ▇.▇. ▇▇▇▇▇▇’▇ Malawi Subcustodian exits the market or becomes an unacceptable provider of subcustody services, ▇.▇. ▇▇▇▇▇▇ may cease to provide custody services with

 

 

Market	Restrictions
	respect to Malawi Securities. Although ▇.▇. ▇▇▇▇▇▇ will work with customers to mitigate the impact of any decision to exit the market, it may not be practicable to give significant advance notice of the exit.
Palestinian Territories	Until further notice from ▇.▇. ▇▇▇▇▇▇, any credit of U.S. Dollars or Jordanian Dinars to the Customer’s Cash Account with ▇.▇. ▇▇▇▇▇▇ applied at Customer’s direction to the purchase or sale of Securities safekept in the Palestinian Territories will be conditional and subject to reversal by ▇.▇. ▇▇▇▇▇▇ upon notice to Customer except to the extent that the funds are able to be repatriated or ▇.▇. ▇▇▇▇▇▇ is able to repatriate the funds from ▇.▇. ▇▇▇▇▇▇’▇ Subcustodian in the Palestinian Territories via a capital remittance transaction (upon Instruction received from Customer). In this regard, Customer will be entitled to no more than Customer’s pro rata share of any recoveries that ▇.▇. ▇▇▇▇▇▇ is able to obtain, as reasonably determined by ▇.▇. ▇▇▇▇▇▇.   ▇.▇. ▇▇▇▇▇▇’▇ Palestinian Subcustodian, HSBC Bank Middle East Limited, Palestinian Autonomous Area, advises that the Palestinian Territories are subject to social and political unrest. There is no well defined legal system in place, no satisfactory mechanism for resolving any disputes and an embryonic oversight control of the Palestinian institutions. In the event of bankruptcy of the Palestine Exchange who owns and operates the Central Depository and Settlement Department, there is no system of insurance in place and no mandate at the Palestine Monetary Authority to rescue a failing bank.   Clients should therefore be aware that, due to the political uncertainties and ongoing development, issues may arise in the Palestinian Territories in connection with any of the services which the Palestinian Subcustodian is providing under our subcustodian agreement with them.   As a result, ▇.▇. ▇▇▇▇▇▇ wishes to highlight that there could be disruption in services, and that these disruptions or limitations in service would be considered as force majeure.
Russia (for Russian Equities only)	Customer should refer to the current version of the applicable ▇.▇. ▇▇▇▇▇▇’▇ Russia briefing memo regarding the registrar company system of recording ownership of equity Securities issued by a Russian issuer (“Russian Equities”). Registrar companies licensed in Russia to provide share registration services to an issuer of Russian Equities (“Russian Registrar Company”) are not Securities Depositories or Subcustodians or otherwise agents of ▇.▇. ▇▇▇▇▇▇.   ▇.▇. ▇▇▇▇▇▇ provides custody services with respect to Russian Equities only when held through a Russian securities depository in which the Russian Subcustodian participates or when the Russian Subcustodian has a contract with the applicable Russian Registrar Company. Customer should refer to the current version of the applicable Russia briefing memo for information concerning these contracts and steps ▇.▇. ▇▇▇▇▇▇ currently takes to monitor the performance of Russian Registrar Companies.   ▇.▇. ▇▇▇▇▇▇’▇ responsibility with respect to the safekeeping of Russian Equities shall be limited to maintaining electronic records of Russian Equities holdings owned by Customer based on either (i) fax or scanned copies of share re-registration notifications issued by a Russian Registrar Company in respect of the Russian Equities (“Russian Share Notifications”), as provided to ▇.▇. ▇▇▇▇▇▇ by either the custodian of the Customer’s counterparty in the case of a purchase transaction or by the Russian Registrar Company in the case of a sales transaction, or (ii) electronic copies of notifications issued by a Russian Securities Depository (“Russian Depository Notifications”). ▇.▇. ▇▇▇▇▇▇ shall not

 

 

Market	Restrictions
	be responsible for ensuring the validity or genuineness of the notifications (originals or copies) it receives.   Due to unclear standards in the Russian market with respect to the completion and submission of corporate action elections, ▇.▇. ▇▇▇▇▇▇ will be subject to a “reasonable efforts” standard of care with respect to any Corporate Action related to Russian Equities. For clients settling through Russian Registrar Companies, proxy services are available where a signed agreement is in place between the Russian Subcustodian and the applicable Russian Registrar Company.
Tanzania	Local currency will be held in one or more separate cash accounts that ▇.▇. ▇▇▇▇▇▇ opens for the benefit of its customers with ▇.▇. ▇▇▇▇▇▇’▇ Tanzanian Subcustodian.   Due to the unclear standards in the Tanzanian market with respect to the completion and submission of corporate action elections, ▇.▇. ▇▇▇▇▇▇ will be subject to a “reasonable efforts” standard of care with respect to any Corporate Action related to Securities safekept in Tanzania (“Tanzanian Securities”).   If ▇.▇. ▇▇▇▇▇▇’▇ Tanzanian Subcustodian exits the market or becomes an unacceptable provider of subcustody services, ▇.▇. ▇▇▇▇▇▇ may cease to provide custody services with respect to Tanzanian Securities. Although ▇.▇. ▇▇▇▇▇▇ will work with customers to mitigate the impact of any decision to exit the market, it may not be practicable to give significant advance notice of the exit.
Ukraine (for Ukrainian Equities only)	Customer should refer to the current version of the applicable ▇.▇. ▇▇▇▇▇▇’▇ Ukraine briefing memo regarding the account structure and corporate action nuances of the Ukrainian market.   For client opening accounts in Ukraine and unincorporated client types in particular, due to unclear standards in the Ukrainian market with respect to the completion and submission of corporate action elections, ▇.▇. ▇▇▇▇▇▇ will be subject to a “reasonable efforts” standard of care with respect to any Corporate Action related to equity Securities safekept in Ukraine.
West African Economic and Monetary Union (“WAEMU”)	Local currency will be held in one or more separate cash accounts that ▇.▇. ▇▇▇▇▇▇ opens for the benefit of its customers with ▇.▇. ▇▇▇▇▇▇’▇ WAEMU Subcustodian.   If ▇.▇. ▇▇▇▇▇▇’▇ WAEMU Subcustodian exits the market or becomes an unacceptable provider of subcustody services, or if market conditions otherwise deteriorate within one or more of the member states of WAEMU, ▇.▇. ▇▇▇▇▇▇ may cease to provide custody services with respect to Securities issued in member states of WAEMU that are settled and safekept at Dépositaire Central/Banque de Règlement S.A.. Although ▇.▇. ▇▇▇▇▇▇ will work with customers to mitigate the impact of any decision to exit the market, it may not be practicable to give significant advance notice of the exit.
Zimbabwe	Until further notice from ▇.▇. ▇▇▇▇▇▇, any credit of U.S. Dollars to the Customer’s Cash Account with ▇.▇. ▇▇▇▇▇▇ applied at Customer’s direction to the purchase or sale of Zimbabwe Securities will be conditional and subject to reversal by ▇.▇. ▇▇▇▇▇▇ upon notice to Customer except to the extent that the funds are able to be repatriated or ▇.▇. ▇▇▇▇▇▇ is able to repatriate the funds from ▇.▇. ▇▇▇▇▇▇’▇ Zimbabwean Subcustodian via a capital remittance transaction (upon Instruction received from Customer). In this regard, Customer will be entitled to no more than Customer’s pro rata share of any recoveries that ▇.▇. ▇▇▇▇▇▇ is able to obtain, as reasonably determined by ▇.▇. ▇▇▇▇▇▇.   If ▇.▇. ▇▇▇▇▇▇’▇ Zimbabwean Subcustodian exits the market or becomes an unacceptable provider of subcustody services, or if market conditions otherwise deteriorate, J.P.

 

 

Market	Restrictions
	▇▇▇▇▇▇ may cease to provide custody services with respect to Securities that are safekept in Zimbabwe. Although ▇.▇. ▇▇▇▇▇▇ will work with customers to mitigate the impact of any decision to exit the market, it may not be practicable to give significant advance notice of the exit.

 

U.K. Client Money Terms

Funds held in cash accounts that ▇.▇. ▇▇▇▇▇▇ opens with a Subcustodian for the benefit of its customers will be subject to the protections of the U.K. FSA Client Money Rules and such cash accounts treated as Designated Client Money Accounts for purposes of those rules. In this regard, ▇.▇. ▇▇▇▇▇▇ shall not place any of its proprietary funds in any of these cash accounts. However, Customer’s funds in these cash accounts may be commingled (though distinguishable via books and records kept at ▇.▇. ▇▇▇▇▇▇) with funds belonging to other ▇.▇. ▇▇▇▇▇▇ clients. These cash accounts are not an obligation of ▇.▇. ▇▇▇▇▇▇. In cases where the market is located outside of the European Economic Area (“EEA”), these cash accounts may be subject to the laws of the market in which the Subcustodian operates such cash accounts. As a result, the Customer’s rights relating to such deposits may differ from its rights in deposits held at banks in the EEA. In the event that the Subcustodian pays interest on any of these cash accounts, the Customer shall be entitled to its proportionate share of that interest.

 

ANNEX A

 

Electronic Access

 

1.            ▇.▇. ▇▇▇▇▇▇ may permit the Customer and its Authorized Persons to access certain electronic systems and applications (collectively, the “Products”) and to access or receive electronically Data (as defined below) in connection with the Agreement (collectively, the “Products”). ▇.▇. ▇▇▇▇▇▇ may, from time to time, introduce new features to the Products or otherwise modify or delete existing features of the Products in its sole discretion. ▇.▇. ▇▇▇▇▇▇ shall endeavor to give the Customer reasonable notice of its termination or suspension of access to the Products, but may do so immediately if ▇.▇. ▇▇▇▇▇▇ determines, in its sole discretion, that providing access to the Products would violate Applicable Law or that the security or integrity of the Products is at risk. Access to the Products shall be subject to the Security Procedures.

 

2.            In consideration of the fees paid by the Customer to ▇.▇. ▇▇▇▇▇▇ and subject to any applicable software license addendum in relation to ▇.▇. ▇▇▇▇▇▇-owned or sublicensed software provided for a particular application and Applicable Law, ▇.▇. ▇▇▇▇▇▇ grants to the Customer a non-exclusive, non-transferable, limited and revocable license to use the Products and the information and data made available through the Products or transferred electronically (the “Data”) for the Customer’s internal business use only. 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. The license granted herein will permit use by the Customer’s Authorized Person, provided that such use shall be in compliance with the Agreement, including this Annex. The Customer acknowledges that elements of the Data, including prices, corporate action information, and reference data, may have been licensed by ▇.▇. ▇▇▇▇▇▇ from third parties and that any use of such Data beyond that authorized by the foregoing license, may require the permission of one or more third parties in addition to ▇.▇. ▇▇▇▇▇▇.

 

3.            The Customer acknowledges that there are 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 is solely responsible for obtaining, maintaining and operating all software (including antivirus software, anti-spyware software, and other internet security software) and personnel necessary for the Customer to access and use the Products. All such software must be interoperable with ▇.▇. ▇▇▇▇▇▇’▇ software. Each of the Customer and ▇.▇. ▇▇▇▇▇▇ shall be responsible for the proper functioning, maintenance and security of its own systems, services, software and other equipment.

 

4.            In cases where ▇.▇. ▇▇▇▇▇▇’▇ web site is unexpectedly down or otherwise unavailable, ▇.▇. ▇▇▇▇▇▇ shall, absent a force majeure event, provide other appropriate means for the Customer or its Authorized Persons to instruct ▇.▇. ▇▇▇▇▇▇ or obtain reports from ▇.▇. ▇▇▇▇▇▇. ▇.▇. ▇▇▇▇▇▇ shall not be liable for any Liabilities arising out of the Customer’s use of, access to or inability to use the Products via ▇.▇. ▇▇▇▇▇▇’▇ web site in the absence of ▇.▇. ▇▇▇▇▇▇’▇ ▇▇▇▇▇ negligence or willful misconduct.

 

5.            Use of the Products may be monitored, tracked, and recorded. In using the Products, the Customer hereby expressly consents to such monitoring, tracking, and recording. Individuals and organizations should have no expectation of privacy unless local law, regulation, or contract provides otherwise. ▇.▇. ▇▇▇▇▇▇ shall own all right, title and interest in the data reflecting the Customer usage of the Products or ▇.▇. ▇▇▇▇▇▇’▇ web site (including, but not limited to, general usage data and aggregated transaction data). ▇.▇. ▇▇▇▇▇▇ may use and sublicense data obtained by it regarding the Customer’s use of the Products or ▇.▇. ▇▇▇▇▇▇’▇ website, as long as ▇.▇. ▇▇▇▇▇▇ does not disclose to others that the Customer was the source of such data or the details of individual transactions effected using the Products or web site.

 

6.            The Customer shall not knowingly 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 geographic location of its users upon written request. The Customer further represents and warrants to ▇.▇. ▇▇▇▇▇▇ that the Customer shall not access the service from any jurisdiction which ▇.▇. ▇▇▇▇▇▇ informs the Customer or where the Customer has actual knowledge that the service is not authorized for use due to local regulations or laws, including applicable software export rules and regulations. 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 ▇.▇. ▇▇▇▇▇▇ to process the data set out therein for the purposes of providing the Products.

 

8.            The Customer will be subject to and shall comply with all applicable laws, rules and regulations concerning restricting collection, use, disclosure, processing and free movement of the Data (collectively, the “Privacy Regulations”). The Privacy Regulations may include, as applicable, the Federal “Privacy of Consumer Financial Information” Regulation (12 CFR Part 30), as amended from time to time, issued pursuant to Section 504 of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 (15 ▇.▇.▇. §▇▇▇▇, et seq.), the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d), The Data Protection ▇▇▇ ▇▇▇▇ and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to processing of personal data and the free movement of such data.

 

9.            The Customer shall be responsible for the compliance of its Authorized Persons with the terms of the Agreement, including this Annex.