SUPPLEMENTAL AGREEMENT
This Agreement ("Supplemental Agreement") is effective as of October 1,
2004, and is between JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank) ("Bank") and Emerging Markets Growth Fund, Inc. ("Customer").
WHEREAS, Customer has appointed, in accordance with the
provisions of the Investment Company Act of 1940, as amended (the "1940 Act"),
and the rules and regulations thereunder, Bank as custodian on behalf of itself
or those of its existing or additional series of shares, and Bank has agreed to
act as custodian for Customer under the terms and conditions of a Global Custody
Agreement dated July 2, 2001 ("Custody Agreement);
WHEREAS, subsequent to the effective date of the Custody
Agreement, the U.S. Securities and Exchange Commission ("Commission") amended
Rule 17f-4 under the 1940 Act (as so amended, "Rule 17f-4"), and the parties
hereto wish to conform their activities governed by the Custody Agreement to the
requirements of Rule 17f-4;
NOW THEREFORE, Bank and Customer agree as follows:
1. Definitions.
As used herein, the following terms shall have the following respective
meanings:
(a) Clearing corporation, financial asset, securities intermediary, and
security entitlement have the same meanings as is attributed to those terms in
ss. 8-102, ss. 8-103, and xx.xx. 8-501 through 8-511 of the Uniform Commercial
Code, 2002 Official Text and Comments, which are incorporated by reference in
Rule 17f-4.[NY]
(b) Custodian means a bank or other person authorized to hold assets
for the fund under Section 17(f) of the 1940 Act, but does not include Customer,
a foreign custodian or eligible securities depository whose use is governed by
Rules 17f-5 or 17f-7, or a vault, safe deposit box, or other repository for
safekeeping maintained by a bank or other company whose functions and physical
facilities are supervised by a federal or state authority if the fund maintains
its own assets there in accordance with Rule 17f-2.
(c) Intermediary custodian means any subcustodian that is a securities
intermediary and is qualified to act as a custodian.
(d) Securities depository means a clearing corporation that is
registered with the Commission as a clearing agency under section 17A of the
Securities Exchange Act of 1934; or a Federal Reserve Bank or other person
authorized to operate the federal book entry system described in the regulations
of the Department of Treasury codified at 31 CFR 357, Subpart B, or book-entry
systems operated pursuant to comparable regulations of other federal agencies.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Custody Agreement.
2. Maintenance of Financial Assets and Cash at Securities Depository or
Intermediate Custodian
If Bank places and maintains Customer's financial assets,
corresponding to Customer's security entitlements, with a securities depository
or intermediary custodian, Bank must:
(a) at a minimum exercise due care in accordance with reasonable
commercial standards in discharging its duty as a securities intermediary to
obtain and thereafter maintain such financial assets;
(b) provide, promptly upon request by Customer, such reports as are
available concerning the internal accounting controls and financial strength of
Bank; and
(c) require any intermediary custodian at a minimum to exercise due
care in accordance with reasonable commercial standards in discharging its duty
as a securities intermediary to obtain and thereafter maintain financial assets
corresponding to the security entitlements of its entitlement holders.
3. Miscellaneous.
(a) Governing Law; Successors and Assigns; Immunity; Captions. THIS
SUPPLEMENTAL AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK and shall not be
assigned by either party, but shall bind the successors in interest of Customer
and Bank. To the extent that in any jurisdiction Customer or Bank 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,
Customer or Bank, as the case may be, irrevocably shall not claim, and it hereby
waives, such immunity. The captions given to the sections and subsections of
this Supplemental Agreement are for convenience of reference only and are not to
be used to interpret this Supplemental Agreement.
(b) Entire Agreement. This Supplemental Agreement consists exclusively
of this document. There are no other provisions hereof and this Supplemental
Agreement supersedes any other agreements, whether written or oral, between the
parties and relating to the matters discussed herein; provided, however, that
where the provisions of the Custody Agreement are not inconsistent with the
provisions of this Supplemental Agreement, the provisions of the Custody
Agreement shall control; and provided further, that (i) the limitations on
Bank's liability with respect to the acts or omissions of securities
depositories contained in Section 14(d) of the Custody Agreement shall control;
and (ii) the standard of care applicable to Bank as set forth in Section 2(a) of
this Supplemental Agreement, rather than the standard of care applicable to Bank
under the Custody Agreement, shall control. Any amendment hereto must be in
writing, executed by both parties.
(c) Severability. In the event that one or more provisions hereof 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 shall not in any way be
affected or impaired.
(d) Waiver. Except as otherwise provided herein, no failure or delay on
the part of either party in exercising any power or right hereunder 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 hereof, or waiver of any breach or default,
is effective unless in writing and signed by the party against whom the waiver
is to be enforced.
(e) Notices. All notices hereunder shall be effective when actually
received. Any notices or other communications which may be required hereunder
are to be sent to the parties at the following addresses or such other addresses
as may subsequently be given to the other party in writing: (a) Bank: JPMorgan
Chase Bank, N.A., 4 Chase MetroTech Center, Brooklyn, N.Y. 11245, Attention:
Xxxxxx Xxxxx, Vice President, Global Investor Services, Investment Management
Group; and (b) Customer: Emerging Markets Growth Fund, Inc., c/o Capital
International Inc., Attention: Xxxxxxx Xxxxx, Senior Vice President, 000 Xxxxx
Xxxxx Xxxxxxx Xxxxxxxxx, Xxxx, XX 00000-0000; with a copy to Xxxxx Xxxxx, Senior
Vice President and Senior Counsel, Capital International Inc., 00000 Xxxxx
Xxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000.
(f) Termination. This Supplemental Agreement may be terminated by
Customer or Bank by giving sixty (60) days' written notice to the other,
provided that such notice to Bank shall specify the names of the persons to whom
Bank shall deliver the Assets. . If notice of termination is given by Bank,
Customer shall, within sixty (60) days following receipt of the notice, deliver
to Bank Instructions specifying the names of the persons to whom Bank shall
deliver the Assets. In either case Bank shall deliver the Assets to the persons
so specified, after deducting any amounts which Bank determines in good faith to
be owed to it under Section 15 of the Custody Agreement. If within sixty (60)
days following receipt of a notice of termination by Bank, Bank does not receive
Instructions from Customer specifying the names of the persons to whom Bank
shall deliver the Assets, Bank, at its election, may deliver such Assets to a
bank or trust company doing business in the State of New York to be held and
disposed of pursuant to the provisions hereof, or to Authorized Persons, or may
continue to hold such Assets until Instructions are provided to Bank.
(g) Representative Capacity; Non-recourse Obligations. A COPY OF THE
DECLARATION OF TRUST OR OTHER ORGANIZATIONAL DOCUMENT OF THE CUSTOMER IS ON FILE
WITH THE SECRETARY OF STATE OF THE STATE OF THE CUSTOMER'S FORMATION, AND NOTICE
IS HEREBY GIVEN THAT THIS SUPPLEMENTAL AGREEMENT IS NOT EXECUTED ON BEHALF OF
THE DIRECTORS OF CUSTOMER AS INDIVIDUALS, AND THE OBLIGATIONS OF THIS
SUPPLEMENTAL AGREEMENT ARE NOT BINDING UPON ANY OF THE DIRECTORS, OFFICERS,
SHAREHOLDERS OR PARTNERS OF CUSTOMER INDIVIDUALLY, BUT ARE BINDING ONLY UPON THE
ASSETS AND PROPERTY OF CUSTOMER. BANK AGREES THAT NO SHAREHOLDER, DIRECTOR,
OFFICER OR PARTNER OF CUSTOMER MAY BE HELD PERSONALLY LIABLE OR RESPONSIBLE FOR
ANY OBLIGATIONS OF CUSTOMER ARISING OUT OF THIS SUPPLEMENTAL AGREEMENT.
IN WITNESS WHEREOF, the Customer and Bank have executed this
Supplemental Agreement as of the date first-written above.
By: EMERGING MARKETS GROWTH FUND, INC.
By:____________________________________
Name:
Title:
JPMorgan Chase Bank, N.A.
By:________________________________________
Name:
Title: Vice President
