CUSTODY AGREEMENT
AGREEMENT dated September 12, 1989, between THE CHASE
MANHATTAN BANK, N.A. ("Chase"), having its principal place of business at 0
Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXXXXXX REAL ESTATE TRUST
(the "Fund"), an investment company registered under the Investment Company Act
of 1940 ("Act of 1940"), having its principal place of business at 000 Xxxxxxx
Xxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, the Fund wishes to appoint Chase as custodian to its
securities and assets and Chase is willing to act as custodian under the terms
and conditions hereinafter set forth;
NOW, THEREFORE, the Fund and its successors and assigns and
Chase and its successors and assigns, hereby agree as follows:
1. APPOINTMENT AS CUSTODIAN. Chase agrees to act as custodian
for the Fund, as provided herein, in connection with (a) cash ("Cash") received
from time to time from, or for the account of, the Fund for credit to the Fund's
deposit account or accounts administered by Chase, Chase Branches and Domestic
Securities Depositories (as hereinafter defined), and/or Foreign Banks and
Foreign Securities Depositories (as hereinafter defined) (the "Deposit
Account"); (b) all stocks, shares, bonds, debentures, notes, mortgages, or other
obligations for the payment of money and any certificates,
receipts, warrants, or other instruments representing rights to receive,
purchase, or subscribe for the same or evidencing or representing any other
rights or interests therein and other similar property ("Securities") from time
to time received by Chase and/or any Chase Branch, Domestic Securities
Depository, Foreign Bank or Foreign Securities Depository for the account of the
Fund (the "Custody Account"); and (c) original margin and variation margin
payments in a segregated account for futures contracts (the "Segregated
Account").
All cash held in the Deposit Account or in the Segregated
Account in connection with which Chase agrees to act as custodian is hereby
denominated as a special deposit which shall be held in trust for the benefit of
the Fund and to which Chase, Chase Branches and Domestic Securities Depositories
and/or Foreign Banks and Foreign Securities Depositories shall have no ownership
rights, and Chase will so indicate on its books and records pertaining to the
Deposit Account and the Segregated Account. All cash held in auxiliary accounts
that may be carried for the Fund with Chase (including a Money Market Account,
Redemption Account, Distribution Account and Imprest Account) is not so
denominated as a special deposit and title thereto is held by Chase subject to
the claims of creditors.
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2. AUTHORIZATION TO USE BOOK ENTRY SYSTEM, DOMESTIC
SECURITIES DEPOSITORIES, BRANCH OFFICES, FOREIGN BANKS AND
FOREIGN SECURITIES DEPOSITORIES. Chase is hereby authorized
to appoint and utilize, subject to the provisions of Sections
4 and 5 hereof:
A. The Book Entry System and The Depository Trust
Company; and also such other Domestic Securities Depositories
selected by Chase and as to which Chase has received a
certified copy of a resolution of the Fund's Board of Trustees
authorizing deposits therein;
X. Xxxxx'x foreign branch offices in the United
Kingdom, Hong Kong, Singapore, and Tokyo, and such other
foreign branch offices of Chase located in countries approved
by the Board of Trustees of the Fund as to which Chase shall
have given prior notice to the Fund;
C. Foreign Banks which Chase shall have
selected, which are located in countries approved by
the Board of Trustees of the Fund, and as to which
banks Chase shall have given prior notice to the
Fund; and
D. Foreign Securities Depositories which Chase
shall have selected and as to which Chase has
received a certified copy of a resolution of the
Fund's Board of Trustees authorizing deposits
therein;
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to hold Securities and Cash at any time owned by the Fund, it being understood
that no such appointment or utilization shall in any way relieve Chase of its
responsibilities as provided for in this Agreement. Foreign branch offices of
Chase appointed and utilized by Chase are herein referred to as "Chase
Branches." Unless otherwise agreed to in writing, (a) each Chase Branch, each
Foreign Bank and each Foreign Securities Depository shall be selected by Chase
to hold only Securities as to which the principal trading market or principal
location as to which such Securities are to be presented for payment is located
outside the United States; and (b) Chase and each Chase Branch, Foreign Bank and
Foreign Securities Depository will promptly transfer or cause to be transferred
to Chase, to be held in the United States, Securities and/or Cash that are then
being held outside the United States upon request of the Fund and/or of the
Securities and Exchange Commission. Utilization by Chase of Chase Branches,
Domestic Securities Depositories, Foreign Banks and Foreign Securities
Depositories shall be in accordance with provisions as from time to time
amended, of an operating agreement to be entered into between Chase and the Fund
(the "Operating Agreement").
3. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
(a) "Authorized Persons of the Fund" shall mean
such officers or employees of the Fund or any other
person or persons as shall have been designated by a
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resolution of the Board of Trustees of the Fund, a certified
copy of which has been filed with Chase, to act as Authorized
Persons hereunder. Such persons shall continue to be
Authorized Persons of the Fund, authorized to act either
singly or together with one or more other of such persons as
provided in such resolution, until such time as the Fund shall
have filed with Chase a written notice of the Fund
supplementing, amending, or revoking the authority of such
persons.
(b) "Book-Entry system" shall mean the Federal
Reserve/Treasury book-entry system for United States and
federal agency securities, its successor or successors and its
nominee or nominees.
(c) "Domestic Securities Depository" shall mean The
Depository Trust Company, a clearing agency registered with
the Securities and Exchange Commission, its successor or
successors and its nominee or nominees; and (subject to the
receipt by Chase of a certified copy of a resolution of the
Fund's Board of Trustees specifically approving deposits
therein as provided in Section 2(a) of this Agreement) any
other person authorized to act as a depository under the Act
of 1940, its successor or successors and its nominee or
nominees.
(d) "Foreign Bank" shall mean any banking
institution organized under the laws of a
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jurisdiction other than the United States or of any
state thereof.
(e) A "Foreign Securities Depository" shall mean any
system for the central handling of securities abroad where all
securities of any particular class or series of any issuer
deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping without physical
delivery of the securities by any Chase Branch or Foreign
Bank.
(f) "Written Instructions" shall mean
instructions in writing signed by Authorized Persons
of the Fund giving such instructions, and/or such
other forms of communications as from time to time
shall be agreed upon in writing between the Fund and
Chase.
4. SELECTION OF COUNTRIES IN WHICH SECURITIES MAY
BE HELD. Chase shall not cause Securities and Cash to be held in any country
outside the United States until the Fund has directed the holding of its assets
in such country. Chase will be provided with a copy of a resolution of the
Fund's Board of Trustees authorizing such custody in any country outside of the
United States, which resolution shall be based upon, among other factors, the
following:
(a) comparative operational efficiencies of
custody;
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(b) clearance and settlement and the costs
thereof; and
(c) political and other risks, other than those
risks specifically assumed by Chase.
5. RESPONSIBILITY OF CHASE TO SELECT CUSTODIANS IN
INDIVIDUAL FOREIGN COUNTRIES. The responsibility for
selecting the Chase Branch, Foreign Bank or Foreign Securities Depository to
hold the Fund's Securities and Cash in individual countries authorized by the
Fund shall be that of Chase. Chase generally shall utilize Chase Branches where
available. In locations where there are no Chase Branches providing custodial
services, Chase shall select as its agent a Foreign Bank, which may be an
affiliate or subsidiary of Chase. To facilitate the clearance and settlement of
securities transactions, Chase represents that, subject to the approval of the
Fund, it may deposit Securities in a Foreign Securities Depository in which
Chase is a participant. In situations in which Chase is not a participant in a
Foreign Securities Depository, Chase may, subject to the approval of the Fund,
authorize a Foreign Bank acting as its subcustodian to deposit the Securities in
a Foreign Securities Depository in which the Foreign Bank is a participant.
Notwithstanding the foregoing, such selection by Chase of a Foreign Bank or
Foreign Securities Depository shall not become effective until Chase has been
advised by the Fund that a majority of its Board of Trustees:
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(a) Has approved Chase's selection of the particular
Foreign Bank or Foreign Securities Depository, as the case may
be, as consistent with the best interests of the Fund and its
Shareholder;
(b) Has approved as consistent with the best
interests of the Fund and its Shareholders a written
contract prepared by Chase which will govern the
manner in which such Foreign Bank will maintain the
Fund's assets.
6. CONDITIONS ON SELECTION OF FOREIGN BANK OR
FOREIGN SECURITIES DEPOSITORY. Chase shall authorize the
holding of Securities and Cash by a Chase Branch, Foreign
Bank or Foreign Securities Depository only:
(a) to the extent that the Securities and Cash are
not subject to any right, charge, security interest, lien or
claim of any kind in favor of any such Foreign Bank or Foreign
Securities Depository, except for their safe custody or
administration, and
(b) to the extent that the beneficial ownership
of Securities is freely transferable without the
payment of money or value other than for safe custody
or administration.
7. CHASE BRANCHES AND FOREIGN BANKS NOT AGENTS OF
THE FUND. Chase Branches, Foreign Banks and Foreign
Securities Depositories shall be subject to the instructions
of Chase and/or the Foreign Bank, and not to those of the
Fund. Chase warrants and represents that all such
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instructions shall afford protection to the Fund at least equal to that afforded
for Securities held directly by Chase. Any Chase Branch, Foreign Bank or Foreign
Securities Depository shall act solely as agent of Chase or of such
Foreign Bank.
8. CUSTODY ACCOUNT. Securities held in the Custody
Account shall be physically segregated at all times from
those of any other person or persons except that (a) with
respect to Securities held by Chase Branches, such Securities may be placed in
an omnibus account for the customers of Chase, and Chase shall maintain separate
book entry records for each such omnibus account, and such Securities shall be
deemed for the purpose of this Agreement to be held by Chase in the Custody
Account; (b) with respect to Securities deposited by Chase with a Foreign Bank,
a Domestic Securities Depository or a Foreign Securities Depository, Chase shall
identify on its books as belonging to the Fund the Securities shown on Chase's
account on the books of the Foreign Bank, Domestic Securities Depository or
Foreign Securities Depository; and (c) with respect to Securities deposited by a
Foreign Bank with a Foreign Securities Depository, Chase shall cause the Foreign
Bank to identify on its books as belonging to Chase, as agent, the Securities
shown on the Foreign Bank's account on the books of the Foreign Securities
Depository. All Securities of the Fund maintained by Chase pursuant to this
Agreement shall be subject only to the instructions of Chase, Chase Branches or
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their agents. Chase shall only deposit Securities with a Foreign Bank in
accounts that include only assets held by Chase for its customers.
8a. SEGREGATED ACCOUNT FOR FUTURES CONTRACTS. With
respect to every futures contract purchased, sold or cleared
for the Custody Account, Chase agrees, pursuant to Written
Instructions, to:
(a) deposit original margin and variation
margin payments in a segregated account maintained by
Chase; and
(b) perform all other obligations attendant to
transactions or positions in such futures contracts,
as such payments or performance may be required by
law or the executing broker.
8b. SEGREGATED ACCOUNT FOR REPURCHASE AGREEMENTS.
With respect to purchases for the Custody Account from banks (including Chase)
or broker-dealers, of United States or foreign government obligations subject to
repurchase agreements, Chase agrees, pursuant to Written Instructions, to:
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(a) deposit such securities and repurchase
agreements in a segregated account maintained by
Chase; and
(b) promptly show on Chase's records that such
securities and repurchase agreements are being held
on behalf of the Fund and deliver to the Fund a
written confirmation to that effect.
8c. SEGREGATED ACCOUNTS FOR DEPOSITS OF COLLATERAL.
Chase agrees, with respect to (i) cash or high quality debt securities to secure
the Fund's commitments to purchase new issues of debt obligations offered on a
when-issued basis; (ii) cash, U.S. government securities, or irrevocable letters
of credit of borrowers of the Fund's portfolio securities to secure the loan to
them of such securities; and/or (iii) cash, securities or any other property
delivered to secure any other obligations; (all of such items being hereinafter
referred to as "collateral"), pursuant to Written Instructions, to:
(a) deposit the collateral for each such
obligation in a separate segregated account
maintained by Chase; and
(b) promptly to show on Chase's records that
such collateral is being held on behalf of the Fund
and deliver to the Fund a written confirmation to
that effect.
9. DEPOSIT ACCOUNT. Subject to the provisions of
this Agreement, the Fund authorizes Chase to establish and
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maintain in each country or other jurisdiction in which the principal trading
market for any Securities is located or in which any Securities are to be
presented for payment, an account or accounts, which may include nostro accounts
with Chase Branches and omnibus accounts of Chase at Foreign Banks, for receipt
of cash in the Deposit Account, in such currencies as directed by Written
Instructions. For purposes of this Agreement, cash so held in any such account
shall be evidenced by separate book entries maintained by Chase at its office in
London and shall be deemed to be Cash held by Chase in the Deposit Account.
Unless Chase receives Written Instructions to the contrary, cash received or
credited by Chase or any other Chase Branch, Foreign Bank or Foreign Securities
Depository for the Deposit Account in a currency other than United States
dollars shall be converted promptly into United States dollars whenever it is
practicable to do so through customary banking channels (including without
limitation the effecting of such conversions at Chase's preferred rates through
Chase, its affiliates or Chase Branches), and shall be automatically transmitted
back to Chase in the United States.
10. SETTLEMENT PROCEDURES. Settlement procedures
for transactions in Securities delivered to, held in, or to
be delivered from the Custody Account in Chase Branches,
Domestic Securities Depositories, Foreign Banks and Foreign
Securities Depositories, including receipts and payments of
cash held in any nostro account or omnibus account for the
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Deposit Account as described in Section 9, shall be carried out in accordance
with the provisions of the Operating Agreement. It is understood that such
settlement procedures may vary, as provided in the Operating Agreement, from
securities market to securities market, to reflect particular settlement
practices in such markets.
Chase shall make or cause the appropriate Chase Branch or
Foreign Bank to move payments of Cash held in the Deposit Account only:
(a) in connection with the purchase of Securities for
the account of the Fund and only against the receipt of such
Securities by Chase or by another appropriate Chase Branch,
Domestic Securities Depository, Foreign Bank or Foreign
Securities Depository, or otherwise as provided in the
Operating Agreement, each such payment to be made at prices
confirmed by Written Instructions, or
(b) in connection with any dividend, interim
dividend or other distribution declared by the Fund,
or
(c) as directed by the Fund by Written Instructions
setting forth the name and address of the person to whom the
payment is to be made and the purpose for which the payment is
to be made.
Upon the receipt by Chase of Written Instructions
specifying the Securities to be so transferred or delivered,
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which instructions shall name the person or persons to whom transfers or
deliveries of such Securities shall be made and shall indicate the time(s) for
such transfers or deliveries, Securities held in the Custody Account shall be
transferred, exchanged, or delivered by Chase, any Chase Branch, Domestic
Securities Depository, Foreign Bank, or Foreign Securities Depository, as the
case may be, against payment in Cash or Securities, or otherwise as provided in
the Operating Agreement, only:
(a) upon sale of such Securities for the account of
the Fund and receipt of such payment in the amount shown in a
broker's confirmation of sale of the Securities or other
proper authorization received by Chase before such payment is
made, as confirmed by Written Instructions;
(b) in exchange for or upon conversion into other
Securities alone or other Securities and Cash pursuant to any
plan of merger, consolidation, reorganization,
recapitalization, readjustment, or tender offer;
(c) upon exercise of conversion, subscription,
purchase, or other similar rights represented by such
Securities; or
(d) otherwise as directed by the Fund by Written
Instructions which shall set forth the amount and purpose of
such transfer or delivery.
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Until Chase receives Written Instructions to the contrary,
Chase shall, and shall cause each Chase Branch, Domestic Securities Depository,
Foreign Bank and Foreign Securities Depository holding Securities or Cash to,
take the following actions in accordance with procedures established
in the Operating Agreement:
(a) collect and timely deposit in the Deposit Account
all income due or payable with respect to any Securities and
take any action which may be necessary and proper in
connection with the collection and receipt of such income;
(b) present timely for payment all Securities in the
Custody Account which are called, redeemed or retired or
otherwise become payable and all coupons and other income
items which call for payment upon presentation and to receive
and credit to the Deposit Account Cash so paid for the account
of the Fund except that, if such Securities are convertible,
such Securities shall not be presented for payment until two
business days preceding the date on which such conversion
rights would expire unless Chase previously shall have
received Written Instructions with respect thereto;
(c) present for exchange all Securities in the
Custody Account converted pursuant to their terms
into other Securities;
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(d) in respect of securities in the Custody Account,
execute in the name of the Fund such ownership and other
certificates as may be required to obtain payments in respect
thereto, provided that Chase shall have requested and the Fund
shall have furnished to Chase any information necessary in
connection with such certificates;
(e) exchange interim receipts or temporary
Securities in the Custody Account for definitive
Securities; and
(f) receive and hold in the Custody Account all
Securities received as a distribution on Securities
held in the Custody Account as a result of a stock
dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement
or distribution of rights or similar Securities
issued with respect to any Securities held in the
Custody Account.
11. RECORDS. Chase hereby agrees that Chase and any
Chase Branch or Foreign Bank shall create, maintain, and retain all records
relating to their activities and obligations as custodian for the Fund under
this Agreement in such manner as will meet the obligations of the Fund under the
Act of 1940, particularly Section 31 thereof and Rules 31a-1 and 31a-2
thereunder, and Federal, state and foreign tax laws and other legal or
administrative rules or procedures, in each case as currently in effect and
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applicable to the Fund. All records so maintained in connection with the
performance of its duties under this Agreement shall, in the event of
termination of this Agreement, be preserved and maintained by Chase as required
by regulation, and shall be made available to the Fund or its agent upon
request, in accordance with the provisions of Section 19.
Chase hereby agrees, subject to restrictions under applicable
laws, that the books and records of Chase and any Chase Branch pertaining to
their actions under this Agreement shall be open to the physical, on-premises
inspection and audit at reasonable times by the independent accountants
("Accountants") employed by, or other representatives of, the Fund. Chase hereby
agrees that, subject to restrictions under applicable laws, access shall be
afforded to the Accountants to such of the books and records of any Foreign
Bank, Domestic Securities Depository or Foreign Securities Depository with
respect to Securities and Cash as shall be required by the Accountants in
connection with their examination of the books and records pertaining to the
affairs of the Fund. Chase also agrees that as the Fund may reasonably request
from time to time, Chase shall provide the Accountants with information with
respect to Chase's and Chase Branches' systems of internal accounting controls
as they relate to the services provided under this Agreement, and Chase shall
use its best efforts to obtain and furnish similar information with respect to
each Domestic Securities
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Depository, Foreign Bank and Foreign Securities Depository
holding Securities and Cash.
12. REPORTS. Chase shall supply periodically, upon the
reasonable request of the Fund, such statements, reports, and advices with
respect to Cash in the Deposit Account and the Securities in the Custody Account
and transactions in Securities from time to time received and/or delivered for
or from the Custody Account, as the case may be, as the Fund shall require. Such
statements, reports and advices shall include an identification of the Chase
Branch, Domestic Securities Depository, Foreign Bank and Foreign Securities
Depository having custody of the Securities and Cash, and descriptions thereof.
13. REGISTRATION OF SECURITIES. Securities in the Custody
Account which are issued or issuable only in bearer form (except such securities
as are held in the Book-Entry System) shall be held by Chase, Chase Branches,
Domestic Securities Depositories, Foreign Banks or Foreign Securities
Depositories in that form. All other Securities in the Custody Account shall be
held in registered form in the name of Chase, or any Chase Branch, the
Book-Entry System, Domestic Securities Depository, Foreign Bank or Foreign
Securities Depository and their nominees, as custodian or nominee.
14. STANDARD OF CARE.
(a) GENERAL. Chase shall assume entire
responsibility for all Securities held in the Custody
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Account, Cash held in the Deposit Account, Cash or Securities
held in the Segregated Account and any of the Securities and
Cash while in the possession of Chase or any Chase Branch,
Domestic Securities Depository, Foreign Bank or Foreign
Securities Depository, or in the possession or control of any
employees, agents or other personnel of Chase or any Chase
Branch, Domestic Securities Depository, Foreign Bank or
Foreign Securities Depository; and shall be liable to the Fund
for any loss to the Fund occasioned by any destruction of the
Securities or Cash so held or while in such possession, by any
robbery, burglary, larceny, theft or embezzlement by any
employees, agents or personnel of Chase or any Chase Branch,
Domestic Securities Depository, Foreign Bank or Foreign
Securities Depository, and/or by virtue of the disappearance
of any of the Securities or Cash so held or while in such
possession, with or without any fault attributable to Chase
("fault attributable to Chase" for the purposes of this
Agreement being deemed to mean any negligent act or omission,
robbery, burglary, larceny, theft or embezzlement by any
employees or agents of Chase or any Chase Branch, Domestic
Securities Depository, Foreign Bank or Foreign Securities
Depository). In the event of Chase's discovery or notification
of any such loss of Securities or Cash, Chase shall promptly
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notify the Fund and shall reimburse the Fund to the extent of
the market value of the missing Securities or Cash as at the
date of the discovery of such loss. The Fund shall not be
obligated to establish any negligence, misfeasance or
malfeasance on Chase's part from which such loss resulted, but
Chase shall be obligated hereunder to make such reimbursement
to the Fund after the discovery or notice of such loss,
destruction or theft of such Securities or Cash. Chase may at
its option insure itself against loss from any cause but shall
be under no obligation to insure for the benefit of the Fund.
(b) COLLECTIONS. All collections of funds or other
property paid or distributed in respect of Securities held in
the Custody Account shall be made at the risk of the Fund.
Chase shall have no liability for any loss occasioned by delay
in the actual receipt of notice by Chase (or by any Chase
Branch or Foreign Bank in the case of Securities or Cash held
outside of the United States) of any payment, redemption or
other transaction regarding Securities held in the Custody
Account or Cash held in the Deposit Account in respect of
which Chase has agreed to take action in the absence of
Written Instructions to the contrary as provided in Section 10
of this Agreement, which does not appear in any of
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the publications referred to in Section 16 of this
Agreement.
(c) EXCLUSIONS. Notwithstanding any other provision
in this Agreement to the contrary, Chase shall not be
responsible for (i) losses resulting from war or from the
imposition of exchange control restrictions, confiscation,
expropriation, or nationalization of any securities or assets
of the issuer of such securities, or (ii) losses resulting
from any negligent act or omission of the Fund or any of its
affiliates, or any robbery, theft, embezzlement or fraudulent
act by any employee or agent of the Fund or any of its
affiliates. Chase shall not be liable for any action taken in
good faith upon Written Instructions of Authorized Persons of
the Fund or upon any certified copy of any resolution of the
Board of Trustees of the Fund, and may rely on the genuineness
of any such documents which it may in good faith believe to be
validly executed.
(d) LIMITATION ON LIABILITY UNDER SECTION 14(A).
Notwithstanding any other provision in this Agreement to the
contrary, it is agreed that Chase's sole responsibility with
respect to losses under Section 14(a) shall be to pay the Fund
the amount of any such loss as provided in Section 14(a)
(subject to the limitation provided in Section 14(e) of this
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Agreement). This limitation does not apply to any
liability of Chase under Section 14(f) of this Agree-
ment.
(e) ANNUAL ADJUSTMENT OF LIMITATION OF LIABILITY. As
soon as practicable after June 1 of every year, the Fund shall
provide Chase with the amount of its total net assets as of
the close of business on such date (or if the New York Stock
Exchange is closed on such date, then in that event as of the
close of business on the next day on which the New York Stock
Exchange is open for business).
It is understood by the parties to this Agreement (1)
that Chase has entered into substantially similar custody
agreements with other Xxxxxxxxx Funds, all of which Funds have
as their investment adviser either the Investment Manager of
the Fund or companies which are affiliated with the Investment
Manager; and (2) that Chase may enter into substantially
similar custody agreements with additional mutual funds under
Xxxxxxxxx management which may hereafter be organized. Each of
such custody agreements with each of such other Xxxxxxxxx
Funds contains (or will contain) a "Standard of Care" section
similar to this Section 14, except that the limit of Chase's
liability is (or will be) in varying amounts for each Fund,
with the aggregate limits of
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liability in all of such agreements, including this
Agreement, amounting to $150,000,000.
On each June 1, Chase will total the net assets
reported by each one of the Xxxxxxxxx Funds, and will
calculate the percentage of the aggregate net assets of all
the Xxxxxxxxx Funds that is represented by the net asset value
of this Fund. Thereupon Chase shall allocate to this Agreement
with this Fund that proportion of its total of $150,000,000
responsibility undertaking which is substantially equal to the
proportion which this Fund's net assets bears to the total net
assets of all such Xxxxxxxxx Funds subject to adjustments for
claims paid as follows: all claims previously paid to this
Fund shall first be deducted from its proportionate allocable
share of the $150,000,000 Chase responsibility, and if the
claims paid to this Fund amount to more than its allocable
share of the Chase responsibility, then the excess of such
claims paid to this Fund shall diminish the balance of the
$150,000,000 Chase responsibility available for the
proportionate shares of all of the other Xxxxxxxxx Funds
having similar custody agreements with Chase. Based on such
calculation, and on such adjustment for claims paid, if any,
Chase thereupon shall notify the Fund of such limit of
liability under this Section 14 which will be available to the
Fund with respect to
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(1) losses in excess of payment allocations for previous years
and (2) losses discovered during the next year this Agreement
remains in effect and until a new determination of such limit
of responsibility is made on the next succeeding June 1.
(f) OTHER LIABILITY. Independently of Chase's
liability to the Fund as provided in Section 14(a) above (it
being understood that the limitations in Sections 14(d) and
14(e) do not apply to the provisions of this Section 14(f)),
Chase shall be responsible for the performance of only such
duties as are set forth in this Agreement or contained in
express instructions given to Chase which are not contrary to
the provisions of this Agreement. Chase will use and require
the same care with respect to the safekeeping of all
Securities held in the Custody Account, Cash held in the
Deposit Account, and Securities or Cash held in the Segregated
Account as it uses in respect of its own similar property, but
it need not maintain any insurance for the benefit of the
Fund. With respect to Securities and Cash held outside of the
United States, Chase will be liable to the Fund for any loss
to the Fund resulting from any disappearance or destruction of
such Securities or Cash while in the possession of Chase or
any Chase Branch, Foreign Bank or Foreign Securities
Depository, to the same extent it would be liable to
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the Fund if Chase had retained physical possession of such
Securities and Cash in New York. It is specifically agreed
that Chase's liability under this Section 14(f) is entirely
independent of Chase's liability under Section 14(a).
Notwithstanding any other provision in this Agreement to the
contrary, in the event of any loss giving rise to liability
under this Section 14(f) that would also give rise to
liability under Section 14(a), the amount of such liability
shall not be charged against the amount of the limitation on
liability provided in Section 14(d).
(g) COUNSEL; LEGAL EXPENSES. Chase shall be entitled
to the advice of counsel (who may be counsel for the Fund) at
the expense of the Fund in connection with carrying out
Chase's duties hereunder and in no event shall Chase be liable
for any action taken or omitted to be taken by it in good
faith pursuant to advice of such counsel. If, in the absence
of fault attributable to Chase and in the course of or in
connection with carrying out its duties and obligations
hereunder, any claims or legal proceedings are instituted
against Chase or any Chase Branch by third parties, the Fund
will hold Chase harmless against any claims, liabilities,
costs, damages or expenses incurred in connection therewith
and, if the Fund so elects, the Fund may assume the
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defense thereof with counsel satisfactory to Chase,
and thereafter shall not be responsible for any
further legal fees that may be incurred by Chase,
provided, however, that all of the foregoing is
conditioned upon the Fund's receipt from Chase of
prompt and due notice of any such claim or
proceeding.
15. EXPROPRIATION INSURANCE. Chase represents that
it does not intend to obtain any insurance for the benefit of the Fund which
protects against the imposition of exchange control restrictions on the transfer
from any foreign jurisdiction of the proceeds of sale of any Securities or
against confiscation, expropriation or nationalization of any securities or the
assets of the issuer of such securities by a government of any foreign country
in which the issuer of such securities is organized or in which securities are
held for safekeeping either by Chase, or any Chase Branch, Foreign Bank or
Foreign Securities Depository in such country. Chase has discussed the
availability of expropriation insurance with the Fund, and has advised the Fund
as to its understanding of the position of the staff of the Securities and
Exchange Commission that any investment company investing in securities of
foreign issuers has the responsibility for reviewing the possibility of the
imposition of exchange control restrictions which would affect the liquidity of
such investment company's assets and the possibility of exposure to political
risk, including the appropriateness of insuring
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against such risk. The Fund has acknowledged that it has the responsibility to
review the possibility of such risks and what, if any, action should be taken.
16. PROXY, NOTICES, REPORTS, ETC. Chase shall watch for the
dates of expiration of (a) all purchase or sale rights (including warrants,
puts, calls and the like) attached to or inherent in any of the Securities held
in the Custody Account and (b) conversion rights and conversion price changes
for each convertible Security held in the Custody Account as published in
Telstat Services, Inc., Standard & Poor's Financial Inc. and/or any other
publications listed in the Operating Agreement (it being understood that Chase
may give notice to the Fund as provided in Section 21 as to any change, addition
and/or omission in the publications watched by Chase for these purposes). If
Chase or any Chase Branch, Foreign Bank or Foreign Securities Depository shall
receive any proxies, notices, reports, or other communications relative to any
of the Securities held in the Custody Account, Chase shall, on its behalf or on
behalf of a Chase Branch, Foreign Bank or Foreign Securities Depository,
promptly transmit in writing any such communication to the Fund. In addition,
Chase shall notify the Fund by person-to-person collect telephone concerning any
such notices relating to any matters specified in the first sentence of this
Section 16.
As specifically requested by the Fund, Chase shall execute or
deliver or shall cause the nominee in whose name
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Securities are registered to execute and deliver to such person as may be
designated by the Fund proxies, consents, authorizations and any other
instruments whereby the authority of the Fund as owner of any Securities in the
Custody Account registered in the name of Chase or such nominee, as the case may
be, may be exercised. Chase shall vote Securities in accordance with Written
Instructions timely received by Chase, or such other person or persons as
designated in or pursuant to the Operating Agreement.
Chase and any Chase Branch shall have no liability for any
loss or liability occasioned by delay in the actual receipt by them or any
Foreign Bank or Foreign Securities Depository of notice of any payment or
redemption which does not appear in any of the publications referred to in the
first sentence of this Section 16.
17. COMPENSATION. The Fund agrees to pay to Chase from time to
time such compensation for its services pursuant to this Agreement as may be
mutually agreed upon in writing from time to time and Chase's out-of-pocket or
incidental expenses, as from time to time shall be mutually agreed upon by Chase
and the Fund. The Fund shall have no responsibility for the payment of services
provided by any Domestic Securities Depository, such fees being paid directly by
Chase. In the event of any advance of Cash for any purpose made by Chase
pursuant to any Written Instruction, or in the event that Chase or any nominee
of Chase shall incur or be assessed any taxes in connection with the performance
of this
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Agreement, the Fund shall indemnify and reimburse Chase therefor, except such
assessment of taxes as results from the negligence, fraud, or willful misconduct
of Chase, any Domestic Securities Depository, Chase Branch, Foreign Bank or
Foreign Securities Depository, or as constitutes a tax on income, gross receipts
or the like of any one or more of them. Chase shall have a lien on Securities in
the Custody Account and on Cash in the Deposit Account for any amount owing to
Chase from time to time under this Agreement upon due notice to the Fund.
18. AGREEMENT SUBJECT TO APPROVAL OF THE FUND. It
is understood that this Agreement and any amendments shall be
subject to the approval of the Fund.
19. TERM. This Agreement shall remain in effect until
terminated by either party upon 60 days' written notice to the other, sent by
registered mail. Notwithstanding the preceding sentence, however, if at any time
after the execution of this Agreement Chase shall provide written notice to the
Fund, by registered mail, of the amount needed to meet a substantial increase in
the cost of maintaining its present type and level of bonding and insurance
coverage in connection with Chase's undertakings in Section 14(a), (d) and (e)
of this Agreement, said Section 14(a), (d) and (e) of this Agreement shall cease
to apply 60 days after the providing of such notice by Chase, unless prior to
the expiration of such 60 days the Fund agrees in writing to assume the amount
needed for such purpose. Chase, upon the
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date this Agreement terminates pursuant to notice which has been given in a
timely fashion, shall, and/or shall cause each Domestic Securities Depository
to, deliver the Securities in the Custody Account, pay the Cash in the Deposit
Account, and deliver and pay Securities and Cash in the Segregated Account to
the Fund unless Chase has received from the Fund 60 days prior to the date on
which this Agreement is to be terminated Written Instructions specifying the
name(s) of the person(s) to whom the Securities in the Custody Account shall be
delivered, the Cash in the Deposit Account shall be paid, and Securities and
Cash in the Segregated Account shall be delivered and paid. Concurrently with
the delivery of such Securities, Chase shall deliver to the Fund, or such other
person as the Fund shall instruct, the records referred to in Section 11 which
are in the possession or control of Chase, any Chase Branch, or any Domestic
Securities Depository, or any Foreign Bank or Foreign Securities Depository, or
in the event that Chase is unable to obtain such records in their original form
Chase shall deliver true copies of such records.
20. AUTHORIZATION OF CHASE TO EXECUTE NECESSARY DOCUMENTS. In
connection with the performance of its duties hereunder, the Fund hereby
authorizes and directs Chase and each Chase Branch acting on behalf of Chase,
and Chase hereby agrees, to execute and deliver in the name of the Fund, or
cause such other Chase Branch to execute and deliver in the name of the Fund,
such certificates, instruments, and other
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documents as shall be reasonably necessary in connection with such performance,
provided that the Fund shall have furnished to Chase any information necessary
in connection therewith.
21. NOTICES. Any notice or other communication
authorized or required by this Agreement to be given to the
parties shall be sufficiently given (except to the extent
otherwise specifically provided) if addressed and mailed
postage prepaid or delivered to it at its office at the
address set forth below:
If to the Fund, then to
Xxxxxxxxx Real Estate Trust
000 Xxxxxxx Xxxxxx, X.X. Xxx 00000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xx. Xxxxxxxxx, Vice President
If to Chase, then to
The Chase Manhattan Bank, N.A.
1211 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Custody Division Executive
or such other person or such other address as any party shall have furnished to
the other party in writing.
22. NON-ASSIGNABILITY OF AGREEMENT. This Agreement shall not
be assignable by either party hereto; provided, however, that any corporation
into which the Fund or Chase, as the case may be, may be merged or converted or
with which it may be consolidated, or any corporation succeeding to all or
substantially all of the trust business of Chase, shall succeed to the
respective rights and shall assume the respective duties of the Fund or of
Chase, as the case may be, hereunder.
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23. NO PERSONAL LIABILITY. It is understood and expressly
stipulated that neither the holders of Shares of the Fund nor any Trustee,
officer, agent or employee of the Fund shall be personally liable hereunder, nor
shall any resort be had to other private property for the satisfaction of any
claim or obligation hereunder, but the Fund only shall be liable.
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24. GOVERNING LAW. This Agreement shall be governed
by the laws of the State of New York.
THE CHASE MANHATTAN BANK, N.A.
By:/s/XXXXXXXXX XXX
Vice President
XXXXXXXXX REAL ESTATE TRUST
By:/s/XXXX XX. XXXXXXXXX
Xxxx Wm. Xxxxxxxxx
Vice President
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