EXECUTION COPY
GLOBAL CUSTODY AGREEMENT
BETWEEN
XXXXXXXX GLOBAL SERIES TRUST
AND
JPMORGAN CHASE BANK
CONTENTS
INTENTION OF THE PARTIES..........................................................3
WHAT CHASE IS REQUIRED TO DO......................................................3
INSTRUCTIONS AND AUTHORISED PERSONS..............................................10
BORROWINGS AND FOREIGN EXCHANGE..................................................13
FEES EXPENSES AND OTHER AMOUNTS OWING TO CHASE...................................13
ELIGIBLE FOREIGN CUSTODIANS AND ELIGIBLE SECURITIES DEPOSITORIES.................14
BROKERS AND OTHER THIRD PARTIES..................................................18
OMNIBUS ACCOUNTS.................................................................19
ABOUT THE PARTIES................................................................19
CONFLICTS OF INTEREST............................................................20
STANDARD OF CARE - HOW CHASE IS TO PERFORM ITS DUTIES UNDER THIS AGREEMENT.......21
WHEN CHASE IS NOT LIABLE.........................................................21
INDEMNITY........................................................................22
TERMINATION......................................................................23
RUSSIA...........................................................................24
UKRAINE..........................................................................25
MISCELLANEOUS....................................................................27
DEFINITIONS......................................................................29
SCHEDULE 1: LIST OF ELIGIBLE FOREIGN CUSTODIANS AND MARKETS USED BY CHASE 32
SCHEDULE 2: TAIWAN RIDER 37
SCHEDULE 3: LETTER OF INSTRUCTION FOR THE TAIWAN MARKET 39
SCHEDULE 4: APPROVED BROKER LIST 41
SCHEDULE 5: TAIWANESE BROKER UNDERTAKING 42
SCHEDULE 6: INFORMATION REGARDING COUNTRY RISK 43
SCHEDULE 7: ELIGIBLE SECURITIES DEPOSITORIES 44
EXHIBIT A PERSONS AUTHORISED BY THE COMPANY TO GIVE INSTRUCTIONS 45
EXHIBIT B PORTFOLIOS OF THE FUND
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This Custody Agreement is made on the ___ day of July, 2003 between JPMORGAN
CHASE BANK ("Chase"), with a place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx and XXXXXXXX GLOBAL SERIES TRUST (the "FUND"), on behalf of each separate
series of the Fund listed on Exhibit B hereto (each such series, a "PORTFOLIO")
whose registered office/principal place of business is 000 Xxxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000
1. INTENTION OF THE PARTIES
This Custody Agreement sets out the terms governing custody, settlement and
other associated services to be provided by Chase to the Fund on behalf of each
Portfolio.
2. WHAT CHASE IS REQUIRED TO DO
SET UP ACCOUNTS A. (i) Subject to the receipt of such
documentation as Chase may require
(including, but not limited to, mandates
and certified copies of the Fund's
constitutional documents), Chase shall
open in its books and records separately
in the name of each Portfolio, or, at
the Fund's reasonable request, in any
other name (together the "ACCOUNTS"):
(a) one or more securities accounts (the
"SECURITIES ACCOUNTS") evidencing any
shares, stocks, debentures, bonds,
notes, mortgages or other like
obligations and any certificates,
receipts, warrants or other
instruments representing rights to
receive, purchase or subscribe for
the same ("SECURITIES") held by Chase
or any branch of Chase on behalf of
such Portfolio or held, as described
and defined in Clause 6, by a
Eligible Foreign Custodian or
Eligible Securities Depository for
Chase on behalf of such Portfolio;
and
(b) one or more cash accounts (the "CASH
ACCOUNTS") for all cash in any
currency received by Chase or any
Eligible Foreign Custodian or
Eligible Securities Depository or
other agents for the account of such
Portfolio.
(ii) At the request of the Fund, further
Accounts may be opened in the future,
which will be subject to the terms of this
Agreement, unless agreed in writing
otherwise at the time the further Account
is opened.
MAINTENANCE OF B. (i) Unless Instructions (as detailed in Clause
SECURITIES AND CASH AT 3) require another location
BANK AND SUB-LOCATIONS acceptable to Chase:
(a) Financial Assets will be held in the
country or jurisdiction in which the
principal trading market for the
relevant Securities is located, where
such Financial Assets may be
presented for payment, where such
Financial Assets were acquired, or
where such Financial Assets are held;
and
(b) cash will be held on the books of
Chase or be credited to accounts of
institutions chosen by Chase in the
country or jurisdiction where such
cash is the legal currency for
payment of public or private debts.
(ii) Chase reserves the right to refuse to
accept delivery of Financial Assets or
cash in countries and jurisdictions other
than those referred to in Schedule
3
1 to this Agreement, which may be
amended by Chase from time to time,
prior notice being given to the Fund
where practicable.
SETTLEMENT
OF TRADES C. (i) When Chase receives an Instruction which
includes all information required by
Chase requesting settlement of a trade
in Financial Assets, Chase shall use
reasonable endeavours to effect such
settlement as instructed, save where
Chase reasonably believes that such
settlement would be contrary to
applicable law, regulation or market
practice.
(ii) With respect to Russia, payment for
Local Russian Securities shall not be
made prior to the issuance by the
Russian Registrar Company of the Share
Extract relating to such Local Russian
Securities. Delivery of Local Russian
Securities may be made in accordance
with the customary or established
securities trading or securities
processing practices and procedures in
Russia. Delivery of Local Russian
Securities may also be made in any
manner specifically required by
Instructions acceptable to Chase. The
Fund shall promptly supply such
transaction and settlement information
as may be required by Chase or CMBI in
connection with particular transactions.
(iii) Delivery of Financial Assets may be made
in accordance with the customary or
established securities trading or
securities processing practices and
procedures in the Ukraine (and the Fund
expressly acknowledge that delivery versus
payment is not typically available in the
Ukraine market). Delivery of Financial
Assets may also be made in any manner
specifically required by Instructions
acceptable to Chase. The Fund shall
promptly supply such transaction and
settlement information as may be requested
by Chase or the Ukrainian Eligible Foreign
Custodian in connection with particular
transactions.
SEGREGATION OF ASSETS D. (i) Chase will identify separately in its
books the Financial Assets that belong
to each Portfolio in the name of such
Portfolio (save as otherwise agreed by
Chase and the Fund).
(ii) Chase will require that Eligible Foreign
Custodians identify in their own books
that the Financial Assets belong to
customers of Chase (to the extent
permitted by applicable law, regulation or
market practice).
CONTRACTUAL SETTLEMENT E. (i) Chase may, at its discretion, effect the
DATE ACCOUNTING following book entries with respect
to the settlement of trades:
(a) ON SALES: on the settlement day for
the sale, credit the Cash Account of
the Fund with the sale proceeds of
the sale and transfer the relevant
Financial Assets to an account
pending settlement of the trade if
not already delivered.
(b) ON PURCHASES: on or before the
settlement day for the purchase,
debit the Cash Account of the Fund
with the settlement monies and
credit a separate account in the
name of the Fund. At the same time
Chase will post the Securities
Account of the Fund with the
expected Financial Assets with a
note to the effect that Chase is
awaiting receipt, pending actual
receipt of such Financial Assets.
The Fund
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shall not be entitled to the delivery of
Financial Assets which are awaiting
receipt until they have actually been
received by Chase or a Eligible Foreign
Custodian.
(ii) Chase may (in its absolute discretion)
reverse any debit or credit made pursuant
to paragraph (i) and the Fund shall be
responsible for any direct or indirect
costs or liabilities resulting from such
reversal in the absence of negligence,
willful default, bad faith or fraud on the
part of Chase, its Eligible Foreign
Custodians (as described in Clause
6H(i)(b) hereof) or their respective
officers, employees or agents. The Fund
acknowledges that the procedures described
in this sub-clause are of an
administrative nature and do not amount to
an agreement by Chase to make loans and/or
Financial Assets available to the Fund.
ACTUAL SETTLEMENT DATE F. With respect to any transaction for which
ACCOUNTING the Fund's Cash Account is not credited on the
contractual settlement date as referred to
in sub-clause E, Chase shall credit the Fund's
Cash Account with the proceeds of any sale or
exchange of Securities on the date on which
such proceeds or Securities are received by
Chase.
INCOME COLLECTION/ G. (i) Chase will credit the Fund's Cash Account
AUTOCREDIT with income and redemption proceeds on
Financial Assets in accordance with the
times notified by Chase from time to time
on or after the anticipated payment date,
net of any taxes which are required to be
withheld by Chase or any third party. Where
no time is specified for a particular
market, income and redemption proceeds on
Financial Assets will only be credited as
soon as reasonably practical after actual
receipt and reconciliation.
(ii) Chase may reverse such entries upon oral or
written notification to the Fund that Chase
reasonably believes that such amount will
not be received by Chase within a reasonable
period.
(iii)Neither Chase nor its Eligible Foreign
Custodians shall be obliged to institute
legal proceedings, file a claim or proof of
claim in any insolvency proceeding or take
any action with respect to collection of
interest, dividends or redemption proceeds.
If Chase or its Eligible Foreign Custodian
does not take any such action with respect
to the filing of a claim or proof of claim
in any insolvency proceeding or the
collection of interest, dividends or
redemption proceeds, Chase will, so far as
reasonably practicable, take such steps as
are available to it to enable the Fund to
take appropriate action.
PRESENTATION OF H. Until Chase receives Instructions to the
COUPONS/ contrary, Chase is authorised to and shall:
ISSUE OF STATEMENTS ETC
(i) present, upon notice to Chase, all
Financial Assets called for redemption or
otherwise matured, and all income and
interest coupons and other income items
which call for payment upon presentation;
(ii) execute in the name of the Fund such
ownership and other certificates as may be
required to obtain payment in respect of
Financial Assets;
(iii) exchange interim or temporary documents of
title held in the Securities Account for
definitive ones; and
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(iv) issue statements to the Fund monthly or at
such other times as are mutually agreed
identifying the Financial Assets in the
Accounts.
CORPORATE ACTIONS I. (i) When Chase receives information or other
material intended to be transmitted to
Financial Asset holders or information is
generally available in New York or the
market where the relevant Financial Assets
are held or traded concerning the
Financial Assets which requires or may
require discretionary action by the
beneficial owner of the Financial Assets
(other than a proxy - see clause 2J,
including but not limited to stock
dividend, stock split, fractional interest
resulting from a rights issue,
subscription rights, bonus issues, stock
repurchase plans, warrant exercise
notices, rights offerings, or legal
notices ("CORPORATE ACTIONS"), Chase will
make all reasonable endeavours to give the
Fund notice in English of such Corporate
Actions within two Business Days of such
information becoming generally available.
For the purposes of these terms, "BUSINESS
DAY" means a day on which both New York
and the relevant local market are open.
Further, so far as it is within Chase's
reasonable control Chase shall allow the
Fund at least two Business Days in which
to give Instructions. Notwithstanding the
generality of the foregoing, if for
reasons outside Chase's reasonable control
in setting the deadline for Instructions
from the Fund, Chase is unable to give at
least two Business Days notice to the
Fund, Chase will use all reasonable
endeavours to inform the Fund of the
Corporate Action and obtain and act on the
Fund's Instructions.
(ii) Without limiting the generality of the
foregoing, where Chase receives an
Instruction prior to its stated deadline
for receiving Instructions from the Fund,
which shall be in compliance with the
terms of clause 2I(i) of this Agreement,
it shall act upon that Instruction. If
Chase does not receive an Instruction from
the Fund within a reasonable time prior to
such stated deadline, it will use all
reasonable endeavours to notify the Fund
that it has yet to receive an Instruction
and will endeavour to obtain such
Instruction in time for Chase to take
timely action including telephoning the
Fund prior to such stated deadline for
receiving Instructions in an attempt to
obtain an oral Instruction. If the Fund
still does not provide an oral or other
Instruction then Chase shall contact the
Fund, in accordance with escalation
procedures agreed between the Fund and
Chase (which may be amended from time to
time), to notify the Fund (a) that an
Instruction is outstanding and (b) what
action Chase will take if the Instruction
remains outstanding and Chase is
authorised to take such action if an
Instruction is then not received within
the required time period. If an
Instruction from the Fund is received
after Chase's stated deadline but prior to
the deadline for responses imposed on
Financial Asset holders by the issuer of
such Financial Assets or other relevant
party, Chase will make all reasonable
endeavours to act on the Fund's
Instruction.
(iii) It is understood and agreed that Chase
need only use its reasonable efforts with
respect to performing the functions
described in this Clause 2I with respect
to Local Russian Securities and Ukraine
Securities.
PROXY J. (i) Subject to and upon the terms of this
sub-clause, Chase will provide the
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VOTING Fund, or such other person as the
Fund may reasonably require, with
information in English which it
receives on resolutions to be voted
upon at meetings of holders of
Financial Assets ("NOTIFICATIONS"),
and Chase will act in accordance
with the Fund's Instructions, or the
Instructions of such other person as
the Fund may reasonably require, in
relation to such Notifications (the
"ACTIVE PROXY VOTING SERVICE").
(ii) Chase will act upon Instructions to vote
on resolutions referred to in a
Notification, provided Instructions are
received by Chase at its proxy voting
department by the deadline referred to in
the relevant Notification. Further notice
will not be given, nor will Chase solicit
Instructions from the Fund. It is the
recipient's obligation to monitor the
agreed means of providing Notifications to
determine if new Notifications have been
received. The Fund acknowledges that in
some cases the time to respond to
Notifications may be very limited. If
information is received by Chase at its
proxy voting department too late to permit
timely voting by the Fund, or such other
person as the Fund may reasonably require,
Chase's only obligation is to provide, so
far as reasonably practicable, a
Notification (or summary information
concerning a Notification) on an
"information only" basis.
(iii) Upon request by the Fund, so far as the
same is available to Chase, back-up
information relating to Notifications
(such as annual reports, explanatory
material concerning resolutions,
management recommendations or other
material relevant to the exercise of proxy
voting rights) will be provided to the
Fund or such other person as the Fund may
reasonably require, but without
translation.
(iv)
The Fund acknowledges that Notifications
and other information furnished pursuant
to the Active Proxy Voting Service
("INFORMATION") are proprietary and may be
subject to various copyrights.
(v) In markets where the active proxy voting
service is not available or where Chase
has not received relevant documentation,
Chase will not provide Notifications to
the Fund but will endeavour to act upon
Instructions to vote on resolutions at
meetings of holders of Financial Assets
where it is reasonably practicable for
Chase (or its correspondent banks or
nominees as the case may be) to do so and
where such Instructions are received in
time for Chase to take timely action (the
"PASSIVE PROXY VOTING SERVICE").
(vi) The Fund acknowledges that the provision
of any proxy voting service (whether
active or passive) may be precluded or
restricted under a variety of
circumstances, including the following:
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a. Financial Assets are out for
registration;
b. Financial Assets conversion or another
corporate action is pending;
c. local market regulations or practices
or restrictions by the issuer;
d. Financial Assets are held in a
margin or collateral account at
Chase or another bank or broker;
e. in certain countries Chase may be
unable to vote proxies except on a
net basis (i.e. a net yes or no vote
based on voting instructions
received from all its clients).
Chase will inform the Fund where
this is the case.
TAX RECLAIMS K. (i) Subject to the provisions of this
sub-clause, Chase will apply for a
reduction of withholding tax and any
refund of any tax paid or tax credits
which apply in each market in respect of
income payments on Securities for the
benefit of the Fund which Chase believes
may be available to the Fund.
(ii) The provision of a tax reclaim service by
Chase in accordance with this sub-clause
is conditional upon Chase receiving from
the beneficial owner of the Financial
Assets (a) a declaration on its identity
and place of residence and (b) certain
other documentation (pro forma copies of
which are available from Chase). The Fund
shall provide to Chase such documentation
and information as it may require in
connection with taxation, and warrant
that, when given, this information is true
and correct in every respect, not
misleading in any way, and contains all
material information. The Fund undertakes
to notify Chase promptly if any
information requires updating or
correcting.
(iii) Chase shall not be liable for any tax,
fines or penalties payable by the Fund
relating to the Accounts of the Fund, and
shall be indemnified by the Fund, as for
such taxes, fines or penalties, whether
these result from the inaccurate
completion of documents by any person
acting on behalf of the Fund, or as a
result of the provision to Chase or any
third party of inaccurate or misleading
information or the withholding of material
information by the Fund or any other
person acting on behalf of the Fund, or as
a result of any delay of any revenue
authority or any other matter beyond the
control of Chase, except to the extent
such taxes, fines or penalties are caused
by Chase's own negligence, willful
default, bad faith or fraud.
(iv) The Fund confirms that Chase is authorised
to deduct from any cash received or
credited to the Cash Account of the Fund
any taxes or levies legally required by
any revenue or governmental authority for
whatever reason in respect of the Fund's
Securities or Cash Accounts.
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(v) Chase shall perform the services set out
in this sub-clause only with respect to
taxation levied by the revenue authorities
of the countries notified by Chase to the
Fund from time to time and Chase may, by
notification in writing, at its absolute
discretion, supplement or amend the
markets in which the tax reclaim services
are offered. Other than as expressly
provided in this sub-clause, Chase shall
have no responsibility with regard to the
tax position or status in any jurisdiction
of the Fund.
(vi) The Fund confirms that Chase is authorised
to disclose any information required by
any relevant revenue authority or any
governmental body having jurisdiction over
the Fund, or the Financial Assets and/or
Cash held for the Fund.
CLAIM OVER SECURITIES X. Xxxxx or any of its Eligible Foreign Custodians
shall as soon as reasonably practicable provide
the Fund with notice of any attempt by any
party to assert any claim over the Financial
Assets or any right or interest in the
Financial Assets provided that the notice gives
sufficient information to link the claim to an
account of the Fund.
INCOME/ M. When Chase becomes aware of any dividend or
REDEMPTION EVENTS redemption announcement concerning the Fund's
Financial Assets or such information is
generally available in New York or the market
in which the Financial Assets are held or
traded Chase shall promptly notify the Fund, or
such other person as the Fund may reasonably
require, of the same.
CONTROL OVER X. Xxxxx shall not release any Financial Assets
SECURITIES into the possession or control of a third party
except on the Instructions of the Fund in
accordance with the duties and responsibilities
of Chase as stipulated in this Agreement.
TIME DEPOSITS O. The Fund may direct that Chase establish time
deposits in such other banking institutions as
may be agreed from time to time between the
Fund and Chase and in such amounts as Chase
shall be instructed by the Fund. In such event,
whether or not instruments representing such
time deposits are to be issued and delivered to
Chase, Chase shall maintain with respect to
such time deposits appropriate records as to
the amounts of each such time deposit with each
such bank and the maturity rate and interest
rate relating to each such time deposit. In
connection with such time deposits with other
banking institutions, Chase shall be obligated
to credit to the Fund only such amount as it
shall be able to recover from such other
banking institutions. Chase shall have no other
responsibility with respect to such time
deposits or the selection of the relevant
banking institution.
P. In the event of the Fund placing monies belonging
to the Fund on time deposits with Chase, Chase
shall pay interest on any such deposit in
accordance with normal banking practice for a
deposit of that term at a rate in such currencies
as notified to the Fund from time to time
SEGREGATED ACCOUNTS X. Xxxxx shall upon receipt of Instructions
establish and maintain a segregated account or
accounts for and on behalf of each Portfolio,
into which account or accounts may be
transferred cash and/or Securities of such
Portfolio (i) in accordance with the provisions
of any agreement among the Fund on behalf of
the Portfolio, Chase and a broker-dealer
registered under the Securities Exchange Act of
1934 and a member of the National Association
of Securities Dealers, Inc. (or
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any futures commission merchant registered
under the Commodity Exchange Act), relating to
compliance with the Rules of The Options
Clearing Corporation and of any registered
national securities exchange (or the Commodity
Futures Trading Commission or any registered
contract market), or of any similar
organization or organizations, regarding escrow
or other arrangements in connection with
transactions by the Portfolio, (ii) for the
purposes of segregating cash or government
securities in connection with options
purchased, sold or written by the Portfolio or
commodity futures contracts or options thereon
purchased or sold by the Portfolio, (iii) for
the purposes of compliance by the Portfolio
with the procedures required by The Investment
Company Act of 1940, as amended (the "1940
ACT") Release No. 10666, or any subsequent
release of the Securities and Exchange
Commission ("SEC"), or interpretative opinion
of the staff of the SEC, relating to the
maintenance of segregated accounts by
registered investment companies, and (iv) for
any other purpose upon receipt of Instructions
from the Fund on behalf of the applicable
Portfolio.
RECORDS X. Xxxxx shall with respect to each Portfolio
create and maintain all records relating to its
activities and obligations under this Agreement
in such manner with particular attention to
Section 31 of the 1940 Act and Rules 31a-1 and
31a-2 thereunder. All such records shall be the
property of the Fund and shall at all times
during regular business hours of Chase be open
for inspection by duly authorized officers,
employees or agents of the Fund and, upon
notice to the Fund, by employees and agents of
the Securities and Exchange Commission. Chase
shall, at the Fund's request, supply the Fund
with a tabulation of securities owned by each
Portfolio and held by Chase and shall, when
requested to do so by the Fund and for such
reasonable compensation as shall be agreed upon
between the Fund and Chase, include certificate
numbers in such tabulations.
REPORTS TO FUND BY X. Xxxxx shall provide the Fund, on behalf of each
INDEPENDENT PUBLIC of the Portfolios, promptly upon request by the
ACCOUNTS Fund, with reports by independent public
accountants on the accounting system, internal
accounting control and procedures for
safeguarding securities, futures contracts and
options on futures contracts, including
securities deposited and/or maintained pursuant
to this Agreement, or concerning the financial
strength of Chase; such reports shall be of
sufficient scope and in sufficient detail as
may reasonably be required by the Fund to
provide reasonable assurance that any material
inadequacies would be disclosed by such
examination, and, if there are no such
inadequacies, the reports shall so state.
3. INSTRUCTIONS AND AUTHORISED PERSONS
AUTHORISED PERSONS AND A. As used in this Agreement:
INSTRUCTIONS
(i) the term "AUTHORISED PERSONS" means the
individuals designated in Exhibit A by the
Fund, or the individuals designated by the
fund managers or advisers (the "INVESTMENT
MANAGERS") using a mandate acceptable to
Chase to act on behalf of the Fund. The
Fund confirms that the Investment Manager
may designate individuals to act on behalf
of the Fund for any Fund under this
Agreement as if such individuals had been
designated by the Fund. Chase shall
continue to treat as Authorised Persons
persons designated as such in accordance
with this clause until such time as Chase
receives Instructions from the Fund that
any such individual is no longer an
Authorised Person. The Fund confirms that,
unless specified otherwise in
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Exhibit A or the mandate from the
Investment Manager, each Authorised
Person shall be authorised to give any
Instructions (as defined in paragraph
(ii) below) in relation to all
Securities and Cash Accounts and in
relation to foreign exchange
transactions and shall be authorised to
give Instructions notwithstanding that
they may result in an overdraft on any
Cash Account. The Investment Manager
shall provide the Fund with such
information regarding the Authorised
Persons designated by the Investment
Manager, in accordance with this clause,
as the Fund may reasonably require upon
request; and
(ii) the term "INSTRUCTIONS" means instructions
containing all necessary information
required by Chase to enable Chase to carry
out the Instructions received by Chase via
telephone, telex, TWX, bank wire, SWIFT or
other teleprocess or electronic
instruction or trade information system
acceptable to Chase which Chase reasonably
believes in good faith to have been given
by Authorised Persons or which are
transmitted with proper testing or
authentication pursuant to terms and
conditions which Chase may specify. Unless
otherwise expressly provided, all
Instructions shall continue in full force
and effect until cancelled or superseded.
B. (i) The Fund acknowledges that under Taiwanese
applicable law and regulations, settlement
must be completed on a "Trade date plus
one" basis and agree that it shall be the
Fund's sole responsibility to ensure that
Instructions are timely received by Chase
and that Chase shall have no
responsibility in the event that
Instructions are not so timely received.
In respect of custody services carried out
by Chase's local Taiwanese Eligible
Foreign Custodian in the Republic of China
("ROC") Schedule 3 applies. In respect
only of Financial Assets held locally in
Taiwan on behalf of the Fund, a letter
substantially in the form of Schedule 4,
as amended from time to time, must be
provided by the Fund to Chase and Chase
shall be required to ensure that Chase and
its local Eligible Foreign Custodian
comply with the operating provisions
stated therein. In the event that Chase or
such Eligible Foreign Custodian does not
follow such provisions, Chase shall be
liable to the Fund. Chase and the Fund
agree that Chase's liability to the Fund
pursuant to this Clause shall be
determined upon the direct and foreseeable
consequences of the acts and/or omissions
of Chase or its local Taiwanese Eligible
Foreign Custodian.
(ii) The Fund agrees to deliver or cause to be
delivered to Chase, upon request, copies
of all its agreements with the brokers
listed in Schedule 5.
(iii) The Fund acknowledges that Instructions
should contain all necessary information
required by Chase to enable Chase to carry
out the Instructions in question.
CONFIRMATION OF ORAL C. Any Instructions delivered to Chase by telephone
INSTRUCTIONS/ shall promptly thereafter be confirmed in writing
SECURITY DEVICES by an Authorised Person (which confirmation may
bear the facsimile signature of such person).
Chase is authorised to reasonably follow such
Instructions notwithstanding the failure of the
Authorised Person to send such confirmation in
writing or the failure of such confirmation to
conform to the telephone Instructions received.
Either party may electronically record any
Instructions given by telephone, and any other
telephone discussions. The Fund
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shall be responsible for safeguarding any test
keys, identification codes or other security
devices which Chase shall make available to the
Fund or any Authorised Person.
ACTING ON D. The Fund authorises Chase to accept and
INSTRUCTIONS/ reasonably act upon any Instructions received by
UNLCEAR INSTRUCTIONS it in accordance with this Agreement without
inquiry. Chase may (without prejudice to the
foregoing) seek clarification or confirmation of
an Instruction from an Authorised Person and in
the event that it does so shall seek such
clarification or confirmation as soon as
reasonably practicable. Chase may decline to act
upon an Instruction if it reasonably and timely
requests clarification or confirmation with
respect to such Instruction and does not receive
clarification or confirmation reasonably
satisfactory to it. In the event that Chase does
seek clarification or confirmation as soon as
reasonably practical Chase shall not be liable
for any loss arising from any delay whilst it
obtains such clarification or confirmation from
an Authorised Person or from exercising its right
to decline to act in the absence of such
clarification or confirmation, to the extent such
liability or loss is not caused by Chase's own
negligence, willful default, bad faith or fraud.
INSTRUCTIONS CONTRARY X. Xxxxx need not act upon Instructions which it
ACTING ON reasonably believes to be contrary to law,
INSTRUCTIONS/ regulation or market practice but is under no
UNLCEAR INSTRUCTIONS duty to investigate whether any Instructions
comply with any applicable law, regulation or
market practice. Chase shall be entitled (but not
bound), if it deems possible to do so to amend an
Instruction (but only in an administrative
respect and not by way of exercising any
investment decision in respect of that
Instruction) in such a manner to comply with what
Chase reasonably believes to be applicable law,
regulation or market practice. Chase shall
immediately notify the Fund in the event that it
determines not to act on an Instruction.
OTHER MATTERS F. If Chase receives an Instruction that it cannot
reasonably process (including, without
limitation, an Instruction to deliver a
security which is not held in the relevant
Account or is not held in a deliverable form;
Instructions to purchase a security in a market
where Chase is not able to process trades for
the Fund or an Instruction which Chase, acting
reasonably, declines to act upon), Chase will
notify the Fund or such person as the Fund may
designate, of the fact that Chase believes an
Instruction to be unprocessable. Such
notification shall be given within 24 hours of
the time that Chase received the Instruction
that it believes to be unprocessable. If such
Instruction is received by Chase after its
cut-off time (as advised to the Fund from time
to time) on any day, it shall be deemed to have
been received, for the purposes of this
paragraph, as of the start of business in New
York on the next Business Day following
receipt. If the 24 hour period following
receipt would expire on a day that is not a
Business Day, it shall be deemed to expire at
the same time of day on the next Business Day.
G. If Chase is advised that a counterparty has
instructions to settle a trade with Chase, or
any of its Eligible Foreign Custodians, which
Chase has identified as being for the account
of the Fund and Chase does not have
corresponding Instructions from the relevant
Authorised Person (a "BROKER ALLEGED TRADE"),
Chase will notify the relevant Authorised
Person of the Broker Alleged Trade within 24
hours of Chase becoming aware of such Broker
Alleged Trade. If such 24 hour period would
expire on a day that is not a Business Day, it
shall be deemed to expire at the same time of
day on the next Business Day.
12
H. For the purposes of Clause 2I, Clause 3F and 3G
above "BUSINESS DAY" shall mean a day (other than
a Saturday) on which banks are open in New York
for the transaction of business of the nature
contemplated herein.
STATEMENTS AND I. (a) Chase will at any time at the Fund's
ADVICES request deliver to the Fund as soon as
reasonably practicable a statement of the
Securities held by it or to its order on
behalf of the Fund.
(b) A certificate or statement by Chase as to
any Liabilities or any Financial Assets or
cash held in any account for the Fund
shall be conclusive in the absence of
error. Prices and other information
contained in any statement sent to the
Fund will be obtained from sources Chase
believes to be reliable. Chase does not,
however, make any representation as to the
accuracy of such information, nor that the
prices specified necessarily reflect the
proceeds that would be received on a
disposal of the relevant Financial Assets.
References in this Agreement to statements
include any statements in electronic form.
4. BORROWINGS AND FOREIGN EXCHANGE
OVERDRAFTS BEAR A. Overdrafts
INTEREST AT NORMAL
RATES If a debit to any currency in the Cash Account
of the Fund results in a debit balance in that
currency then Chase may, at its discretion,
advance an amount equal to the overdraft and
such an advance shall be deemed a loan to the
Fund, payable on demand, bearing interest at
the rate charged by Chase for similar
overdrafts from time to time from the date of
such advance to the date of payment (both after
as well as before judgement) and otherwise on
the terms on which Chase makes similar
overdrafts available from time to time.
FX FACILITIES MAY BE B. Foreign Exchange Transactions
GIVEN AT CHASE'S
DISCRETION To facilitate the administration of the Fund's
trading and investment activity, Chase is
authorised at its discretion to enter into spot
or forward foreign exchange contracts with the
Fund in connection with the Fund and may also
provide foreign exchange contracts and
facilities through its affiliates or Eligible
Foreign Custodians provided that the Fund shall
always receive a market rate reasonably
prevailing on the date of the transaction for
transactions of similar size. Instructions,
including standing instructions, may be issued
with respect to such contracts but Chase may
establish Rules or limitations concerning any
foreign exchange facility made available. In
all cases where Chase, its affiliates or
Eligible Foreign Custodians enter into a
foreign exchange contract related to any
Account, the terms and conditions then current
for foreign exchange contracts of Chase, its
affiliates or Eligible Foreign Custodians and,
to the extent not inconsistent, this Agreement,
shall apply to such transaction.
5. FEES EXPENSES AND OTHER AMOUNTS OWING TO CHASE
FEES - CHASE
AUTHORISED TO A. The Fund will pay Chase for its services under
this Agreement. The Fee shall be such amount as
may be agreed upon in writing, together with
Chase's reasonable out-of-pocket or incidental
expenses, including, but not limited to, legal
fees. Chase may increase such fees only with
the written consent of the Fund. If
13
DEDUCT FEES authorized in writing by an officer of the
Fund, Chase may deduct such amounts owing to it
by the Fund from the Fund's Cash Account
monthly in arrears.
B. In the event of termination of this Agreement,
Chase shall be entitled to receive a
proportionate amount of fees due to it calculated
on a pro-rata basis up to and including the date
of termination.
CHASE'S RIGHTS OVER X. Xxxxx agrees that it waives its rights to any
SECURITIES liens or other security interest over any
Financial Assets held for the Fund that may
arise under applicable law save for the limited
right of sale specified in Clause 14.
CHASE HAS A RIGHT OF D. Following a reasonable period of notice, Chase
SET OFF may set off against any amount owing by the Fund
under this Agreement in respect of the account
of the Fund any currency standing to the credit
of any of the Fund's accounts whether current,
deposit or otherwise. For this purpose, Chase
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.
6. ELIGIBLE FOREIGN CUSTODIANS AND SECURITIES DEPOSITORIES
DELEGATION PURSUANT TO A. The Fund's Board of Trustees (hereinafter
RULE "BOARD") hereby delegates to Chase, and,
17F-5 except as to the country or countries as
to which Chase may, from time to time,
advise the Fund that it does not accept such
delegation, Chase hereby accepts the
delegation to it, of the obligation to
perform as the Fund's "Foreign Custody
Manager" (as that term is defined in SEC
Rule 17f-5(a)(3) as promulgated under the
1940 Act, including for the purposes of: (I)
selecting "Eligible Foreign Custodians" (as
the term is defined in SEC Rule 17f-5(a)(I),
as amended from time to time, or that have
otherwise been exempted pursuant to an SEC
exemptive order) to hold the Fund's "Foreign
Assets" (as that term is defined in SEC Rule
17f-5(a)(1)), (ii) evaluating the
contractual arrangements with such Eligible
Foreign Custodians (in accordance with SEC
Rule 17f-5(c)(2)), and (iii) monitoring such
foreign custody arrangements (in accordance
with SEC Rule 17f-5(c)(3)).
DUTIES OF FOREIGN B. In connection with the foregoing, Chase
CUSTODY shall:
MANAGER
(i) provide written reports notifying the Fund's
Board of the placement of the Fund's Foreign
Assets with particular Eligible Foreign
Custodians and of any material change in the
arrangements with such Eligible Foreign
Custodians, with such reports to be provided
to the Fund's Board at such times as the
Board deems reasonable and appropriate based
on the circumstances of the Fund's foreign
custody arrangements (and until further
notice from the Fund such reports shall be
provide not less than quarterly with respect
to the placement of the Fund's Foreign
Assets with particular Eligible Foreign
Custodians and with reasonable promptness
upon the occurrence of any material change
in the arrangements with such Eligible
14
Foreign Custodians);
(ii) exercise reasonable care, prudence and
diligence in performing as the Fund's
Foreign Custody Manager as a person having
responsibility for the safekeeping of the
Fund's Foreign Assets would exercise;
(iii) in selecting an Eligible Foreign Custodian,
first have determined that the Fund's
Foreign Assets placed and maintained in the
care of such Eligible Foreign Custodian will
be subject to reasonable care, based on the
standards applicable to custodians in the
relevant market, after having considered all
factors relevant to the safekeeping of the
Fund's Foreign Assets, including, without
limitation, those factors set forth in SEC
Rule 17f-5(c)(1)(i)-(iv);
(iv) ensure that the Fund's arrangement with each
Eligible Foreign Custodian is governed by a
written contract that Chase has determined
will provide reasonable care for the Fund's
Foreign Assets based on the standards
specified in SEC Rule 17f-5(c)(1) and
contains at least the provisions required by
SEC Rule 17f-5(c)(2); and
(v) has established a system to monitor the
continued appropriateness of maintaining the
Fund's Foreign Assets with particular
Eligible Foreign Custodians under SEC Rule
17f-5(c)(1) and of the governing contractual
arrangements under SEC Rule 17f-5(c)(2); it
being understood, however, that Chase shall
promptly advise the Fund if the Fund's
arrangements with an Eligible Foreign
Custodian no longer meet the requirements of
SEC Rule 17f-5 and shall then act in
accordance with the Instructions of the Fund
with respect to the disposition of the
affected Foreign Assets.
Subject to subclause B(i)-(v) above, Chase is hereby
authorized to place and maintain the Fund's Foreign
Assets with Eligible Foreign Custodians pursuant to a
written contract deemed appropriate by Chase.
C. Except as expressly provided herein, the
Fund shall be solely responsible to assure
that the maintenance of the Fund's Foreign
Assets hereunder complies with the Rules,
regulations, interpretations and exemptive
orders as promulgated by or under the
authority of the SEC.
X. Xxxxx represents to the Fund that it is a
"U.S. BANK" as defined in SEC Rule
17f-5(a)(7) and will promptly notify the
Fund in the event that it is no longer a
U.S. Bank. The Fund represents to Chase
that: (a) its Foreign Assets being placed
and maintained in Chase's custody are
subject to the 1940 Act; and (b) its Board
has determined that it is reasonable to rely
on Chase to perform as the Fund's Foreign
Custody Manager. Nothing contained herein
shall require Chase to make any selection or
to engage in any monitoring on behalf of the
Fund that would entail consideration of
Country Risk.
X. Xxxxx shall provide to the Fund such
information relating to Country Risk as is
specified in Schedule 6 hereto. The Fund
hereby acknowledges that: (a) such
information is solely designed to inform the
Fund of market conditions and procedures and
is not intended as a recommendation to
invest or not invest in particular markets;
and (b) Chase has gathered the information
from sources it considers reliable, but that
Chase shall have no responsibility for
inaccuracies or incomplete information.
15
U.S. SECURITIES X. Xxxxx and each Eligible Foreign Custodian
DEPOSITORIES may deposit Securities with, and hold
Securities in, any Eligible Securities
Depository, settlement system,
dematerialized book entry system or
similar system (together a "U.S. ELIGIBLE
SECURITIES DEPOSITORY") on such terms as
such systems customarily operate. Chase
will provide the Fund with market
information containing details of such
U.S. Securities Depositories from time to
time.
USE OF ELIGIBLE G. (i) Chase shall provide to the Fund and its
SECURITIES investment advisers an analysis of the
DEPOSITORIES PURSUANT custody risks associated with maintaining
TO RULE 17F-7 the Fund's Foreign Assets with each
Eligible Securities Depository (as
defined in SEC Rule 17f-7(b)(1)(i)-(vi)
of the 1940 Act, or that has otherwise
been made exempt pursuant to an SEC
order) used by Chase as of the date
hereof (or, in the case of an Eligible
Securities Depository not used by Chase
as of the date hereof, prior to the
initial placement of the Fund's Foreign
Assets at such depository) and at which
any Foreign Assets of the Fund are held
or are expected to be held. The foregoing
analysis will be provided to the Fund and
its investment adviser at Chase's Website
(xxx.Xxxxx.xxx.) In connection with the
foregoing, the Fund shall notify Chase of
any Eligible Securities Depositories at
which it does not choose to have its
Foreign Assets held. Chase shall monitor
the custody risks associated with
maintaining the Fund's Foreign Assets at
each such Eligible Eligible Securities
Depository on a continuing basis and
shall promptly notify the Fund or its
investment adviser of any material
changes to such risks.
(ii) Chase shall exercise reasonable care,
prudence and diligence in performing the
requirements set forth in Subclause B(i)
above.
(iii)Based on the information available to it
in the exercise of diligence, Chase shall
determine the eligibility under SEC Rule
17f-7 of each depository before including
it as an Eligible Securities Depository on
Schedule 7 hereto and Chase shall ensure
that the Fund (or its duly-authorized
investment manager or investment adviser)
receives prompt and sufficient information
hereunder if and when a custody
arrangement with an Eligible Securities
Depository no longer meets the
requirements of Rule 17f-7, so that the
Foreign Assets may be withdrawn from the
depository as soon as reasonably
practicable thereafter in accordance with
section (a)(2) of Rule 17f-7. (Eligible
Securities Depositories used by Chase as
of the date hereof are set forth in
Schedule 7 hereto, and as the same may be
amended on notice to the Fund from time to
time.)
(iv) At the request of the Fund, Chase may, but
need not, add to Schedule 1 an Eligible
Foreign Custodian where Chase has not
acted as Foreign Custody Manager with
respect to the selection thereof. Chase
shall notify the Fund in the event that it
elects to add any such entity.
16
LIABILITY FOR EIGIBLE X. Xxxxx shall not be liable for any loss
FOREIGN CUSTODIANS AND resulting from:
SECURITIES DEPOSITORIES
(i) the insolvency of any Eligible Foreign
Custodian which is not a branch or
affiliate of Chase; or
(ii) any act of any Eligible Foreign Custodian,
save where such loss results from an error
or omission by the Eligible Foreign
Custodian or the failure by the Eligible
Foreign Custodian 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, willful default or negligence
(measured in accordance with the
standards U.S. prevailing in the relevant
market) of such Eligible Foreign
Custodian in the provision of custodial
services by it; or
(iii) any act, omission or insolvency of any
U.S. Eligible Securities Depository or
Eligible Securities Depository.
HOLDING OF REGISTERED I. (i) Chase is authorised to hold:
AND BEARER SECURITIES
(a) in bearer form, such Securities as
are customarily held in bearer form;
and
(b) subject to subsection (ii) below,
registered in the name of (at
Chase's discretion) the Fund,
Chase, a Eligible Foreign Custodian
or any nominee of Chase or a
Eligible Foreign Custodian, such
Financial Assets as are customarily
held in registered form.
(ii) although Securities will ordinarily be
registered in the name of a nominee, Chase
may from time to time (due to the nature
of law or market practice, where it is in
the Fund's best interest or it is not
feasible to do otherwise) register or
record securities in the name of an
Eligible Foreign Custodian or Chase itself
with prior notice to the Fund of such
registration or recordings, other than
where in Chase's reasonable opinion the
giving of such prior notice may result in
a delay which could jeopardise the
protection of the assets of the Fund, in
which case notice will be given as soon as
reasonably practical following such
registration or recording (provided
however, that any registration of
Securities in the name of an Eligible
Foreign Custodian or Chase indicates such
Financial Assets are held for the benefit
of customers and not, in any event, for
the benefit of Chase or any Eligible
Foreign Custodian or foreign securities
system or any nominee thereof). If
Securities are registered in Chase's name
the Securities in question may not be
segregated from assets of Chase and in the
event of default by Chase, customers'
assets may not be as well protected.
Arrangements with the Eligible Foreign
Custodians are such that Chase's customer
securities with them must be in a separate
account containing assets belonging only
to the customers of Chase and not Chase's
proprietary assets. In any event, Chase
will notify the Fund of the registration
name used in respect of Securities.
(iii) in the absence of negligence, wilful
default or fraud on its part Chase shall
not be liable for any loss suffered
howsoever caused as a result of an
Instruction to hold Securities with, or
have them registered in the name of, any
person not chosen by Chase.
17
J. Neither Chase nor CMBI shall assume
responsibility for, and neither shall be
liable for, any action or inaction of any
Russian Registrar Company and no Russian
Registrar Company shall be, or shall be
deemed to be, Chase, CMBI, a Eligible
Foreign Custodian, a Eligible Securities
Depository or the employee, agent or
personnel of any of the foregoing. To the
extent that CMBI employs agents to perform
any of the functions to be performed by
Chase or CMBI with respect to Local Russian
Securities, neither Chase nor CMBI shall be
responsible for any act, omission, default
or for the solvency of any such agent unless
the appointment of such agent was made with
Russian/Ukraine Negligence or in bad faith
except that where Chase or CMBI uses (i) an
affiliated nominee or (ii) an agent to
perform the share registration or share
confirmation functions described at
paragraphs (a)-(e) on pages 5-6 of the
No-Action Letter, and, to the extent
applicable to CMBI, the share registration
functions described on pages 2-3 of the
No-Action Letter, Chase and CMBI shall be
liable to the Fund as if CMBI were
responsible for performing such services
itself.
K Delegation by Chase to the Ukrainian
Eligible Foreign Custodian shall not relieve
Chase of any responsibility to the Fund for
any loss due to such delegation, and Chase
shall be liable for any loss or claim
arising out of or in connection with the
performance by the Ukrainian Eligible
Foreign Custodian of such delegated duties
to the same extent as if Chase had itself
provided the custody services hereunder. In
connection with the foregoing, neither Chase
nor the Ukrainian Eligible Foreign Custodian
shall assume responsibility for, and neither
shall be liable for, any action or inaction
of any Registrar Company or Ukrainian
Eligible Securities Depository and no
Registrar Company or Ukrainian depository
shall be, or shall be deemed to be, Chase,
the Ukrainian Eligible Foreign Custodian, a
Eligible Foreign Custodian, or the employee,
agent or personnel of any of the foregoing.
In addition, no Registrar Company shall be
deemed to be a Eligible Securities
Depository. To the extent that the Ukrainian
Eligible Foreign Custodian employs agents to
perform any of the functions to be performed
by Chase or the Ukrainian Eligible Foreign
Custodian with respect to Ukrainian
Securities, neither Chase nor the Ukrainian
Eligible Foreign Custodian shall be
responsible for any act, omission, default
or for the solvency of any such agent unless
the appointment of such agent was made with
Russian/Ukraine Negligence or in bad faith,
except that where Chase or the Ukrainian
Eligible Foreign Custodian uses (i) an
affiliated nominee or (ii) an agent to
perform the share registration or share
confirmation functions described in
paragraphs (a)-(e) on pages 5-6 of the
No-Action Letter, and, to the extent
applicable by extension to the Ukrainian
Eligible Foreign Custodian, the share
registration functions described on pages
2-3 of the No-Action Letter, Chase and the
Ukrainian Eligible Foreign Custodian shall
be liable to the Fund as if the Ukrainian
Eligible Foreign Custodian were responsible
for performing such services itself.
7. BROKERS AND OTHER THIRD PARTIES
BROKER/ X. Xxxxx shall not be responsible for any loss
THIRD PARTY DEFAULT solely resulting from a failure by any broker
or any other third party beyond the control
of Chase. In particular, if a broker or any
third party defaults on any obligation to
deliver Securities or pay
18
cash, Chase shall have no liability to the Fund
for such non-delivery or payment in the absence
of Chase's own negligence, willful default, bad
faith or fraud. Payments of income and settlement
proceeds are at the risk of the account. If
Chase, at the request of the Fund, appoints a
broker or agent to effect any transaction on
behalf of the Fund, Chase shall have no liability
whatsoever in respect of such broker's duties or
its actions, omissions or solvency unless, if
Chase selects such broker or agent, Chase fails
to exercise reasonable care in such selection.
DELIVERY TO BROKERS B. Absent Chase's own negligence, willful default,
bad faith or fraud, Chase shall not be liable for
losses arising from a proper Instruction to
deliver Securities or cash to a broker, even if
Chase might have information tending to show that
this course of action, or the choice of a
particular broker for a transaction, was unwise.
8. OMNIBUS ACCOUNTS
The Fund authorises Chase or its Eligible Foreign Custodian to hold
Financial Assets in fungible accounts and will accept delivery of
Financial Assets of the same class and denomination as those deposited
with Chase or its Eligible Foreign Custodian.
9. ABOUT THE PARTIES
THE PARTIES STATE THAT A. The Fund represents and warrants that:
THEY HAVE FULL
AUTHORITY TO PERFORM (i) it has full authority and power, and has
UNDER THIS AGREEMENT obtained all necessary authorisations
and consents, to deposit and control the
Financial Assets and cash in the
Accounts, to appoint and to use Chase as
custodian in accordance with the terms of
this Agreement and to borrow money and
enter into foreign exchange transactions
provided always that it shall be the duty
of the Fund and not Chase to ensure that
there is no breach of any limit imposed
on the Fund;
(ii) this Agreement is its legal, valid and
binding obligation, enforceable in
accordance with its terms and it has full
power and authority to enter into and has
taken all necessary action to authorise
the execution of this Agreement;
(iii) it has not relied on any oral or written
representation made by Chase or any person
on its behalf except as contained in this
Agreement and acknowledges that this
Agreement sets out to the fullest extent
the duties of Chase;
(iv) the Financial Assets and cash deposited in
the Accounts are not subject to any
encumbrances or security interest
whatsoever, other than a security interest
that may be created in favor of Chase, and
the Fund undertakes that, so long as
Liabilities are outstanding, it will not
create or permit to subsist any such
encumbrance or security interest over
Financial Assets or cash, without prior
notification to Chase of the same, and in
any event, Chase shall not be liable if
performance of its obligations under this
Agreement is prevented or impeded because
of the existence of any such encumbrance
or security.
19
X. Xxxxx represents and warrants that:
(i) it has full authority and power, and has
obtained all necessary authorisations and
consents, to act as custodian in
accordance with the terms of this
Agreement;
(ii) this Agreement is its legal, valid and
binding obligation, enforceable in
accordance with its terms and it has full
power and authority to enter into and has
taken all necessary action to authorise
the execution of this Agreement;
(iii) it has not relied on any oral or written
representation made by the Fund or any
person on its behalf except as contained
in this Agreement and acknowledges that
this Agreement sets out to the fullest
extent the duties of the Fund;
(iv) as specified in Clause 5C, Chase waives
its rights to any liens or other security
interest over any Securities held for the
Fund that may arise under the applicable
law, save for the limited right of sale
specified in Clause 14.
10. CONFLICTS OF INTEREST
CHASE PROVIDES DIVERSE Provided that nothing in this Clause herein shall be
FINANCIAL SERVICES AND taken as authorising Chase to contravene any and all
MAY GENERATE applicable laws, the Fund hereby authorises Chase to
PROFITS AS A RESULT act hereunder notwithstanding that:
(i) Chase or any of its divisions, branches or
affiliates may have a material interest in the
transaction or that circumstances are such that
Chase may have a potential conflict of duty or
interest including the fact that Chase or any of
its affiliates may:
(a) act as a market maker in the Financial
Assets to which the Instructions relate;
(b) provide broking services to other clients;
(c) act as financial adviser to the issuer of
such Financial Assets;
(d) act in the same transaction as agent for
more than one client;
(e) have a material interest in the issue of
the Financial Assets; or
(f) earn profits from any of the activities
listed herein.
CHASE NO DUTY TO (ii)Chase or any of its divisions, branches or
ADVISE IF IT IS AWARE affiliates may be in possession of information
THAT INSTRUCTIONS MAY tending to show that the Instructions received
BE UNWISE may not be in the best interests of the Fund.
Chase is not under any duty to disclose any such
information.
20
11. STANDARD OF CARE - HOW CHASE IS TO PERFORM ITS DUTIES UNDER THIS
AGREEMENT
REASONABLE CARE A. Except to the extent that a higher standard of
care applies pursuant to Clause 6 of this
Agreement, Chase will exercise due care in
accordance with reasonable commercial standards
in performing its obligations under this
Agreement and Chase will look after assets with
the same degree of care as it does for its own
similar assets in the relevant market provided
that Chase shall exercise at least the degree of
skill and care of a prudent professional
custodian for hire. It is understood and agreed,
however, that for Local Russian Securities
Chase's safekeeping responsibilities shall be
limited to safekeeping of relevant Share
Extracts. It is understood and agreed that for
Ukraine Securities Chase's responsibility shall
be limited to the safekeeping of the relevant
Share Extracts and Depository Extracts.
CHASE CAN TAKE ADVICE X. Xxxxx shall be entitled to rely on, and may act
upon the advice of external professional
advisers in relation to matters of law,
regulation or market practice (which may be the
external professional advisers of the Fund),
and shall not be liable to the Fund for any
action reasonably taken or omitted pursuant to
such advice, save to the extent that Chase is
able to recover from such external professional
advisers in respect of negligent advice given.
INSURANCE X. Xxxxx need not maintain any insurance cover for
the benefit of the Fund but, at the request of
the Fund, Chase will confirm to the Fund
details of the insurance policy(ies) (commonly
referred to as a "FINANCIAL INSTITUTIONAL
BOND") between Chase and its insurers providing
in the aggregate coverage in an amount not less
than US$140,000,000 and insurance policy(ies)
providing at least S$140,000,000 cover for
securities in transit in the custody of any
employee or designated messenger of Chase.
12. WHEN CHASE IS NOT LIABLE
MARKET AND COUNTRY RISK A. Investing in foreign markets may be a risky
enterprise. The holding of assets and cash in
foreign jurisdictions may involve risks of loss
or other special features. Chase accepts no
liability whatsoever for any loss which results
solely from:
(i) the general risks of investing; or
(ii) Country Risk.
FORCE MAJEURE X. Xxxxx shall have no liability for any damage,
loss, expense or liability of any nature which
the Fund may suffer or incur, caused by an act
of God, fire, flood, civil or labour
disturbance (save where the labour disturbance
occurs within Chase or any Eligible Foreign
Custodian which is a branch or affiliate of
Chase in circumstances which are within its
reasonable control), 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 by
Chase or its Eligible Foreign Custodian),
malfunction of equipment (including, without
limitation any computer or related software
other than Chase's own computers or software or
those of its Eligible Foreign Custodians),
failure of or the effect of Rules or operations
of any funds transfer system, inability to
obtain or interruption of communications
facilities, or any cause beyond the reasonable
control of Chase (including without limitation,
the non-availability of appropriate foreign
21
exchange).
ACTING REASONABLY AND X. Xxxxx shall not be liable for acting on what it
IN GOOD FAITH reasonably and in good faith believes to be
Instructions or in relation to notices,
requests, waivers, consents, receipts,
corporate actions or other documents which
Chase reasonably and in good faith believes to
be genuine and to have been given or signed by
the appropriate parties. In respect of the
undertaking given by brokers for Taiwanese
Securities as detailed in Schedule 3 Chase
shall not be liable for acting on an
undertaking which it reasonably and in good
faith believes to be genuine and to have been
given or signed by the appropriate parties.
INVALID SECURITIES D. In the absence of negligence, wilful default,
fraud or bad faith on its part, Chase shall not
be liable to the Fund for the collection, deposit
or credit of invalid, fraudulent or forged
Securities.
DELIVERIES X. Xxxxx shall effect all transactions for each
account on a delivery versus payment basis
except that, in the absence of negligence,
wilful default, fraud or bad faith on its part,
Chase shall not be liable for losses arising
out of effecting Instructions for delivery or
payment against an expectation of receipt, save
where such delivery or payment was contrary to
local market practice or with respect to Local
Russian Securities, where it is agreed that
payment shall not be made prior to the issuance
of the Share Extract relating to such Local
Russian Securities. Notwithstanding the
foregoing, if the Fund wishes to give
Instructions to Chase to settle a trade other
than in accordance with local market practice,
the Fund will signify this to Chase in the
manner agreed from time to time in which case
Chase may decline to accept such Instructions
to the extent provided for in Clauses 3D and
3E. Chase shall use all reasonable endeavours
to comply with such Instructions.
CASES WHEN CHASE IS F. Except as provided in Clause 6, Chase shall
NOT LIABLE only be liable to the Fund to the extent Chase
or its officers, employees or agents have been
fraudulent, negligent, or are in wilful
default, of its or their duties as set out in
this Agreement and to the extent provided for
in Clause 6H. Chase and the Fund agree that
Chase's liability to the Fund shall be
determined based upon the direct and
foreseeable consequences of Chase's
fraudulence, negligence, wilful default or bad
faith or Chase's liability for Eligible Foreign
Custodians as described in Clause 6H.
13. INDEMNITY
THE FUND TO INDEMNIFY A. Save in respect of fraud, negligence, willful
CHASE default or bad faith of Chase or its officers,
employees or agents, and save in respect of any
action of any Eligible Foreign Custodian for
which Chase is liable pursuant to Clause 6H,
the Fund undertakes to indemnify Chase and its
nominees, and to keep them indemnified, from
(i) any costs, calls, losses, taxes and other
matters for which Chase or any of its
agents, Eligible Foreign Custodians or
nominees becomes liable or arising as a
direct or indirect result of their status
as a holder of record of Financial Assets
on behalf of the Fund; and
(ii) any other claims, losses, liabilities,
costs and expenses arising under or in
connection with this Agreement.
22
14. TERMINATION
This Agreement shall continue in effect until termination as provided
herein, and may be amended at any time by a written instrument signed
by both parties.
A. (i) Either of the Fund or Chase may terminate this Agreement on
90 days' notice in writing to the other party, PROVIDED THAT
all applicable legal and regulatory requirements are
satisfied, namely that a replacement custodian be appointed
within 90 days of such termination and that until such
replacement is appointed, Chase shall take all necessary steps
to ensure the good preservation of the interests of the Fund.
(ii) In the case of termination by Chase, the Fund shall use its
best endeavours to appoint a new custodian as set forth in
Clause 14A(i) above within the 90-day period specified in such
clause. Chase shall, in the event of such termination, deliver
or cause to be delivered to any succeeding custodian, the
Fund's Financial Assets and cash.
B. In the event of notice of termination of this Agreement being given
under sub-clause A above, the following shall apply:
(i) Chase shall be entitled to deduct any amounts owing to it by
the Fund prior to delivery of the Financial Assets and cash to
the replacement custodian (and accordingly, Chase shall, with
the prior written consent of the Fund, such consent not to be
unreasonably withheld be entitled to sell Financial Assets
pertaining to the Fund and apply the sale proceeds in
satisfaction of such amounts owing to it); and
(ii) if the Fund does not appoint a replacement custodian within
the 90-day period anticipated by sub-clause A above, Chase
shall, following expiry of one further month, be entitled to
exercise the rights conferred by Clause 14B(i) above; and
(iii) termination shall not affect any of the liabilities any party
owes to the other arising under this Agreement prior to such
termination.
C. This Agreement may be terminated by the Fund, forthwith, if at any
time:
(a) Chase shall go into liquidation (except voluntary liquidation
for the purposes of reconstruction or amalgamation upon terms
previously agreed in writing by the Company), or commit any
other act of bankruptcy, or if a receiver is appointed over
any of the assets of Chase;
(b) Chase shall commit any material breach of its obligations
under this Agreement and, if capable of remedy, Chase fails to
make good such breach within 45 days of receipt of notice from
the Fund requiring it to do so:
(c) Chase's supervisory authority shall, as a result of a wrongful
act or omission by Chase, withdraw or fail to renew Chase's
authorisation to act as a bank or as a custodian of assets
such that Chase is no longer permitted to act as custodian
hereunder and it is mandatory that the Fund appoints a new
custodian; or
(d) Chase is no longer eligible to serve as the Fund's Foreign
Custody Manager under SEC Rule 17f-5 or to perform its
delegated responsibilities under SEC Rule 17f-7.
23
15. RUSSIA
A. (i) Chase will advise the Fund (and will
update such advice from time to time as
changes occur) of those Russian Registrar
Companies with which CMBI has entered
into a Registrar Contract. Chase shall
cause CMBI to monitor each Russian
Registrar Company and to promptly advise
the Fund when CMBI has actual knowledge
of the occurrence of any one or more of
the events described in paragraphs
(i)-(v) on pages 8-9 of the No-Action
Letter with respect to a Russian
Registrar Company that serves in that
capacity for any issuer the shares of
which are held by the Fund.
(ii) Where the Fund is considering investing
on behalf of the Fund in the Local
Russian Securities of an issuer as to
which CMBI does not have a Registrar
Contract with the issuer's Russian
Registrar Company, the Fund may request
that CMBI consider whether it would be
willing to attempt to enter into such a
Registrar Contract and CMBI shall advise
the Fund of its willingness to do so.
Where CMBI has agreed to make such an
attempt, Chase will advise the Fund of
the occurrence of any one or more of the
events described in paragraphs (i)-(iv)
on pages 8-9 of the No-Action Letter of
which CMBI has actual knowledge.
(iii) Where the Fund is considering investing on
behalf of the Fund in the Local Russian
Securities of an issuer as to which CMBI
has a Registrar Contract with the issuer's
Russian Registrar Company, the Fund may
advise Chase of its interest in investing
in such issuer and, in such event, Chase
will endeavour to, so far as reasonably
practicable advise the Fund of the
occurrence of any one or more of the
events described in paragraphs (i)-(v) on
pages 8 and 9 of the No-Action Letter of
which CMBI has actual knowledge.
B. The Fund shall pay for and hold Chase and CMBI
harmless from any liability or loss resulting
from the imposition or assessment of any taxes
(including but not limited to state, stamp and
other duties) or other governmental charges, and
any related expenses incurred by Chase, CMBI or
their respective agents with respect to income on
that Fund's Local Russian Securities.
C. The Fund acknowledges and agrees that CMBI may
not be able, in given cases and despite its
reasonable efforts, to obtain a Share Extract
from a Russian Registrar Company and CMBI shall
not be liable in any such event including with
respect to any losses resulting from such
failure. For the avoidance of doubt, this Clause
shall not limit Chase's liability for breach of
its obligations under Clause 2C above.
D. Subject to the co-operation of a Russian
Registrar Company for at least the first two
years following CMBI's first use of such Russian
Registrar Company, Chase shall cause CMBI to
conduct share confirmations on at least a
quarterly basis, although thereafter
confirmations may be conducted on a less frequent
basis if the Fund, in consultation with CMBI,
determines it to be appropriate.
X. Xxxxx shall cause CMBI to prepare for
distribution to the Fund a quarterly report
identifying: (i) any concerns it has regarding
the Local Russian share registration
24
system that should be brought to the attention
of the Fund and (ii) the steps CMBI has taken
during the reporting period to ensure that the
Fund's interests continue to be appropriately
recorded.
F. The services to be provided by Chase hereunder
will be provided only in relation to Local
Russian Securities for which CMBI has entered
into a Registrar Contract with the relevant
Russian Registrar Company.
X. Xxxxx shall be entitled to disclose any
information relating to the Fund or the Local
Russian Securities and/or cash held for the Fund
as is required by any law, court, legal process,
or banking or other regulatory or examining
authorities (whether governmental or otherwise).
H. The Fund acknowledges that it has received,
reviewed and understands the Chase market report
for Russia, including, but not limited to, the
risks described therein. The Fund recognises
that these risks currently are inherent in
investments in Local Russian Securities and that
they should be assessed by the Fund as an
element of the Fund's decision that it is
appropriate for the Fund to invest in Local
Russian Securities. Chase is not responsible for
the Fund's decision that it is appropriate for
the Fund to hold Local Russian Securities
despite the custodial risks associated with the
Russian market. Chase will promptly provide the
Fund with updated market reports in accordance
with Chase's normal practice.
16 UKRAINE
A. (i) Chase shall advise the Fund (and shall
update such advice from time to time as
changes occur) of those Registrar
Companies with which the Ukrainian
Eligible Foreign Custodian has entered
into a Registrar Contract and the identity
of those Ukrainian Securities
Depositories, if any, of which it is a
member. In the case of Ukrainian
Securities which are held for the accounts
through a Registrar Company, but not
through a Ukrainian Eligible Securities
Depository, Chase shall procure the
Ukrainian Eligible Foreign Custodian's
agreement both to monitor each Registrar
Company and to promptly advise Chase
(which shall then promptly advise the
Fund) when the Ukrainian Eligible Foreign
Custodian has actual knowledge of the
occurrence of any one or more of the
events described in paragraphs (i)-(v) on
pages 8-9 of the No-Action Letter with
respect to a Registrar Company that serves
in that capacity for any issuer the shares
of which are held by the Fund.
(ii) Where the Fund is considering investing in
the Ukrainian Securities of an issuer as
to which the Ukrainian Eligible Foreign
Custodian does not have a Registrar
Contract with the issuer's Registrar
Company which Ukrainian Securities either
are held though a Ukrainian Eligible
Securities Depository or are held in a
Ukrainian Eligible Securities Depository
of which the Ukrainian Eligible Foreign
Custodian is not a member, the Fund may
request that Chase request the Ukrainian
Eligible Foreign Custodian both to
consider whether it would be willing to
attempt to enter into such a Registrar
Contract or become a member of such a
Ukrainian Eligible Securities Depository
and to advise the Fund of its willingness
to do so. Where the Ukrainian Eligible
Foreign Custodian has agreed to make such
an attempt, Chase shall advise the Fund of
the occurrence of any one or
25
more of the events described in
paragraphs (i)-(iv) on pages 8-9 of the
No-Action Letter of which the Ukrainian
Eligible Foreign Custodian has actual
knowledge and has advised Chase.
(iii) Where the Fund is considering investing in
the Ukrainian Securities of an issuer as
to which the Ukrainian Eligible Foreign
Custodian has a Registrar Contract with
the issuer's Registrar Company, the Fund
may advise Chase of its interest in
investing in such issuer and, in such
event, Chase will advise the Fund of the
occurrence of any one or more of the
events described in paragraphs (i)-(v) on
pages 8-9 of the No-Action Letter of which
the Ukrainian Eligible Foreign Custodian
has actual knowledge and has advised
Chase.
B. The Fund shall pay for and hold Chase and the
Ukrainian Eligible Foreign Custodian harmless
from any liability or loss resulting from the
imposition or assessment of any taxes or other
governmental charges, and any related expenses
with respect to income on the that Fund's
Ukrainian Securities.
C. The Fund acknowledges that the Ukrainian Eligible
Foreign Custodian may not be able, in given cases
and despite its reasonable efforts, to obtain a
Share Extract from a Registrar Company or a
Depository Extract from a Ukrainian Eligible
Securities Depository, and neither Chase nor the
Ukrainian Eligible Foreign Custodian shall be
liable in any such event including with respect
to any losses resulting from such failure.
D. Subject to the co-operation of a Registrar
Company, for at least the first two years
following the Ukrainian Eligible Foreign
Custodian's first use of a Registrar Company,
Chase shall procure the Ukrainian Eligible
Foreign Custodian's agreement to conduct share
confirmations with that Registrar Company on at
least a quarterly basis, although thereafter
confirmations may be conducted on a less frequent
basis if the Fund, in consultation with Chase,
determines it to be appropriate.
X. Xxxxx shall prepare for distribution to the Fund
a quarterly report identifying: (i) any concerns
the Ukrainian Eligible Foreign Custodian has
regarding the Ukrainian share registration system
that should be brought to the attention of the
Fund; and (ii) the steps the Ukrainian Eligible
Foreign Custodian has taken during the reporting
period to help assure that the Fund's interests
continue to be appropriately recorded.
F. The Fund acknowledges that it has received,
reviewed and understands Chase's market report
for the Ukraine, including, but not limited to,
the risks described therein.
G. Except as provided in Clause 15C above, the
services to be provided hereunder will be
provided only in relation to Ukrainian Securities
for which the Ukrainian Eligible Foreign
Custodian has entered into a Registrar Contract
with the relevant Registrar Company or which are
held through a Ukrainian Eligible Securities
Depository of which the Ukrainian Eligible
Foreign Custodian is a member.
26
17. MISCELLANEOUS
NOTICES A. Notices (other than Instructions) shall be
served by registered mail or hand delivery to the
address of the respective parties as set out on
the first page of this Agreement, unless notice
of a new address is given to the other party in
writing. Notice shall not be deemed to be given
unless it has been received.
SUCCESSORS AND ASSIGNS B. This Agreement shall be binding on each of the
parties' successors and assigns, but the parties
agree that neither party can assign its rights
and obligations under this Agreement without the
prior written consent of the other party, which
consent shall not be unreasonably withheld.
INTERPRETATION C. Headings, marginal notes and paragraphs are
for convenience only and are not intended to
affect interpretation. References to clauses are
to clauses of this Agreement and references to
sub-clauses and paragraphs are to sub-clauses of
the clauses and paragraphs of the sub-clauses in
which they appear.
INTER PLEADER CLAUSE. D. In the event of any dispute between or
WHAT HAPPENS IF THERE conflicting claims by any person or persons with
IS A DISPUTE IN respect to Financial Assets held in a Securities
RELATION TO THE ASSETS Account or cash in a Cash Account, Chase shall
HELD IN THE ACCOUNT be entitled to apply to a court of law to
determine the rights of such persons and
meanwhile at its option to refuse to comply with
any and all claims, demands or Instructions with
respect to such Financial Assets or cash and
other property related thereto so long as such
dispute or conflict shall continue. Chase shall
not be liable or become liable in any way for
its refusal to comply with such conflicting
claims, or demands or Instructions. Chase shall
be entitled to refuse to act until either:
(i) such conflicting or adverse claims or
demands shall have been:
a) finally determined in a court of
competent jurisdiction; or
b) settled by agreement between the
conflicting parties and Chase shall
have received evidence in writing
satisfactory to Chase of such
agreement; or
(ii) Chase shall have received an indemnity
and/or security satisfactory to Chase
sufficient to save it harmless from and
against any or all loss, liability or
expense which Chase may incur by reason of
its actions.
ENTIRE AGREEMENT E. This Agreement, including the Schedules and the
Exhibits hereto, sets out the entire Agreement
between the parties and this Agreement
supersedes any other agreement relating to
custody, whether oral or written with respect to
the Fund. Amendments must be in writing and
signed by all parties.
FRACTIONS/ F. The Fund shall not be entitled to any fraction
REDEMPTIONS BY LOT or other entitlement arising as a result of Chase
holding Financial Assets in omnibus accounts, as
described in Clause 8, which is not directly
referable solely to the holding of the Fund, and
such fractions or entitlements shall be at the
disposal of Chase, provided that Chase shall
have paid to the Fund the market value of such
fraction. On partial redemptions, Chase shall
use whatever method it deems fair to determine
how shares will be redeemed.
27
ACCESS TO CHASE'S X. Xxxxx shall, on written request allow the
RECORDS auditors of the Fund such reasonable access to
its records relating to the Accounts as such
auditors may reasonably require in connection
with the audit of the Fund. Further Chase's
books and records pertaining to the services to
be provided by Chase under this Agreement, shall
be open to examination and review at reasonable
times by the Fund. In addition Chase agrees to
comply with any other reasonable due diligence
checks that the Fund may wish to carry out from
time to time in relation to the Accounts.
GLOBAL CUSTODY H. If and to the extent that there is any
AGREEMENT AND MANDATE inconsistency between the provisions of any
mandate between Chase and any Authorised Person
and/or the Fund and/or the Investment Manager
and the provisions of this Agreement, the
provisions of this Agreement shall prevail.
STOCK LENDING X. Xxxxx unconditionally and irrevocably agrees that
it shall not lend to, or deposit by way of
collateral with a third party any part or whole
of the Financial Assets held by it under this
Agreement without the prior written consent ofe
the Fund.
GOVERNING LAW AND J. This Agreement shall be governed by and
JURISDICTION construed in accordance with the laws of the
United States or State of New York, as
applicable, without regard to New York's
principles regarding conflict of laws. 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.
TRUSTEE SHAREHOLDER K. A copy of the Agreement and Declaration of Trust
LIABILITY, ETC of the Fund is on file with the Secretary of
State of the Commonwealth of Massachusetts and
notice is hereby given that this Agreement is
not binding upon any of the trustees, officers
or shareholders of the Fund individually, but is
binding only upon the assets and property of the
Fund. Chase agrees that no trustee, officer or
shareholder of the Fund may be held personally
liable or responsible for any obligations of the
Fund arising out of this Agreement.
INDIVIDUAL L. The parties intend, acknowledge and agree that
ARRANGEMENTS OF EACH this Agreement shall constitute a separate and
PORTFOLIO; ADDITIONAL discrete contractual arrangement between Chase
PORTFOLIOS and the Fund on behalf of each Portfolio
separately, and shall be construed in all
respects so as to give effect to this
intention to the same extent as if the Agreement
between Chase and the Fund on behalf of each
Portfolio were set out in a separate writing. In
this regard, unless the context clearly indicates
otherwise, references to the "Fund" under this
Agreement shall be interpreted to mean and refer
to each Portfolio, taken separately (for example,
references to the Financial Assets of or
belonging to the "Fund" hereunder shall mean the
Financial Assets of or belonging to a
28
particular Portfolio). Without limiting the
generality of the foregoing, the parties
acknowledge and agree that each Portfolio's
obligations and duties under this Agreement are
individual and are neither joint nor joint and
several, and that no Portfolio shall be liable
or responsible for the acts, omissions, or
liabilities of any other Portfolio or of the
Fund on behalf of or in respect of any other
Portfolio. In the event that the Fund
establishes one or more series in addition to
the Portfolios listed on Exhibit B hereto with
respect to which it desires to have Chase render
services as custodian under the terms hereof,
the Fund shall notify Chase in writing, and if
Chase agrees in writing to provide such
services, Exhibit B shall be amended to add such
series and such series shall become a Portfolio
hereunder for all purposes.
18. DEFINITIONS
The following capitalized terms shall have the meanings ascribed to
them below; provided that, except with respect to Section 15 and Section 16,
such terms shall be interpreted and construed in accordance with the definitions
of such terms in part (c) of Rule 17f-4 under the 1940 Act where the context so
requires.
(a) "ACCOUNT" has the meaning set forth in Section 2A(i)
of this Agreement.
(b)"AFFILIATE" of a person shall mean an "affiliated
person" of such person as that term is used in the 1940
Act.
(c) "AUTHORIZED PERSON" has the meaning set forth in
Section 3A(i) of this Agreement.
(d)"CASH ACCOUNT" has the meaning set forth in Section
2A(i)(b) of this Agreement.
(e)"CMBI" shall mean Chase Manhattan Bank International,
an indirect wholly-owned subsidiary of Chase, located in
Moscow, Russia, and any nominee companies appointed by
it.
(f)"CORPORATE ACTION" has the meaning set forth in
Section 2I(i) of this Agreement.
(g)"COUNTRY RISK" means the risks of investing or
holding assets in a particular country, including, but
not limited to, risks arising from nationalization,
expropriation or other governmental actions; the
country's financial infrastructure, including prevailing
custody and settlement practices; laws applicable to the
safekeeping and recovery of Financial Assets and cash
held in custody in that country; the country's
regulation of the banking and securities industries,
including changes in market Rules; currency
restrictions, devaluations and fluctuations in that
country; and market conditions affecting the orderly
execution of securities transactions or the value of
assets in that country.
(h)"DEPOSITORY EXTRACT" shall mean an extract issued by
a Ukraine Eligible Securities Depository.
(i)"DIRECT LOSS" shall mean a loss determined based on
the market value of the Ukraine Security that is the
subject of the loss at the date of discovery of such
loss and without reference to any consequential damages,
special conditions or circumstances.
29
(j)"ENTITLEMENT HOLDER" means the person named on the
records of a Securities Intermediary as the person
having a Securities Entitlement against the Securities
Intermediary.
(k)"FINANCIAL ASSET" means, as the context requires,
either the asset itself or the means by which a person's
claim to it is evidenced, including a Security, a
security certificate, or a Securities Entitlement.
"FINANCIAL ASSET" does not include cash.
(l)"INSTRUCTIONS" has the meaning set forth in Section
3A(ii) of this Agreement.
(m)"LIABILITIES" means any liabilities, losses, claims,
costs, damages, penalties, obligations or expenses of
any kind whatsoever (including, without limitation,
reasonable attorneys', accountants', consultants' or
experts' fees and reasonable disbursements).
(n) "RUSSIAN/UKRAINE NEGLIGENCE" with respect to Local
Russian Securities and Ukraine Securities shall mean the
failure to exercise Reasonable Care.
(o)"NO-ACTION LETTER" shall mean the response of the
Securities and Exchange Commission's Office of Chief
Counsel of Investment Management, dated April 18, 1995,
in respect of the Xxxxxxxxx Russia Company, Inc. (SEC
Ref. No. 95-141-CC, File No. 811-8788) providing
"no-action" relief under Section 17(f) of The Investment
Company Act of 1940, as amended, and SEC Rule 17f-5
thereunder, in connection with custody of such Fund's
Local Russian Securities investment.
(p)"REASONABLE CARE" with respect to Local Russian
Securities and Ukraine Securities shall mean the use of
reasonable custodial practices under the applicable
circumstances as measured by the custodial practices
then prevailing in Russia or the Ukraine (respectively)
of International Financial Institutions acting as
custodians for their institutional investor clients in
Russia or the Ukraine (respectively).
(q)"REGISTRAR COMPANY" shall mean any entity providing
share registration services to an issuer of Ukraine
Securities.
(r)"RUSSIAN REGISTRAR COMPANY" shall mean any entity
providing share registration services to an issuer of
Local Russian Securities.
(s)"REGISTRAR CONTRACT" shall mean a contract between
CMBI or for Ukraine Securities the Ukraine Eligible
Foreign Custodian and a Registrar Company (and as the
same may be amended from time to time) containing, inter
alia, the contractual provisions described in paragraphs
(a)-(e) on pages 5 and 6 of the No-Action Letter with
the following modifications in relation to Ukraine
Securities: (1) reregistration by a registrar is to take
place within five Ukrainian business days (rather than
within 72 hours) after satisfactory documentation has
been submitted to the registrar, (2) it is anticipated
that all Ukrainian Securities shall be held in the name
of a Ukrainian Eligible Foreign Custodian nominee
(rather than certain securities being held in beneficial
owner name) in the registration books, and (3) the
Ukrainian Eligible Foreign Custodian will itself obtain
audit rights (rather than obtaining rights for the
Fund's own auditors) with respect to the share
registration books .
(t)"LOCAL RUSSIAN SECURITY" shall mean a Security issued
by a Russian issuer and
30
held in the local market by CMBI but shall not include
Depository Receipts.
(u)"DEPOSITORY RECEIPTS" with respect to Russian
Securities shall mean global, international and American
depository receipts or other such instruments which it
is not market practice to settle and hold through a
Russian Eligible Foreign Custodian.
(v)"SECURITIES" has the meaning set forth in Section
2A(i)(a) of this Agreement.
(w)"SECURITIES ACCOUNT" has the meaning set forth in
Section 2A(i)(a) of this Agreement.
(x)"SECURITIES ENTITLEMENT" means the rights and
property interest of an Entitlement Holder with respect
to a Financial Asset as set forth in Part 5 of Article 8
of the Uniform Commercial Code of the State of New York,
as the same may be amended from time to time.
(y)"SECURITIES INTERMEDIARY" means Chase, a Eligible
Foreign Custodian, a Eligible Securities Depository, and
any other financial institution which in the ordinary
course of business maintains custody accounts for others
and acts in that capacity.
(z)(aa) "SHARE EXTRACT" shall mean: (1) an extract of
its share registration books issued by a Registrar
Company or Ukrainian Eligible Securities Depository
indicating an investor's ownership of a security; and
(2) a form prepared by the Ukrainian Eligible Foreign
Custodian or its agent in those cases where a Registrar
Company or Ukrainian Eligible Securities Depository, as
the case may be, is unwilling to issue a Share Extract.
(bb)"UKRAINIAN ELIGIBLE SECURITIES DEPOSITORY" shall
mean any entity both: (1) which is licensed under
Ukrainian law to carry out, as a depository,
registration of rights to Ukrainian Securities, which,
in turn, the Ukrainian Eligible Securities Depository
has registered on an omnibus basis with Registrar
Companies; and (2) in which the Ukrainian Eligible
Foreign Custodian participates. (There are no Ukrainian
Securities Depositories as of the date hereof.)
(cc)"UKRAINIAN SECURITY" shall mean an equity Security
issued by a Ukrainian issuer.
(dd)"UKRAINIAN ELIGIBLE FOREIGN CUSTODIAN" shall mean
ING Bank Ukraine, an indirect wholly-owned subsidiary of
ING Bank, N.V., located in Kiev, Ukraine, and any
nominee companies appointed by it (and shall also mean
any additional or successor Eligible Foreign Custodian
used by Chase in the Ukraine and any nominee companies
appointed by it or them).
AS WITNESS the hand of the duly authorised officers of the parties hereto:
PLEASE TURN TO PAGE 48 TO SIGN
31
SCHEDULE 1
LIST OF ELIGIBLE FOREIGN CUSTODIANS AND MARKETS USED BY CHASE
---------------------------------------------------------------------------------------------------
COUNTRIES/MARKETS ELIGIBLE FOREIGN CUSTODIANS
---------------------------------------------------------------------------------------------------
Argentina The Chase Manhattan Bank
Buenos Aires; and
Citibank N.A.
Buenos Aires
---------------------------------------------------------------------------------------------------
Australia The Chase Manhattan Bank
Sydney
---------------------------------------------------------------------------------------------------
Austria Bank Austria AG
Vienna
---------------------------------------------------------------------------------------------------
Bahrain HSBC Bank Middle East
Manama
---------------------------------------------------------------------------------------------------
Bangladesh Standard Chartered Bank
Dhaka
---------------------------------------------------------------------------------------------------
Belgium Fortis Bank N.V.
Brussels
---------------------------------------------------------------------------------------------------
Bermuda The Bank of Bermuda Ltd
Xxxxxxxx
---------------------------------------------------------------------------------------------------
Botswana Barclays Bank of Botswana Limited
Gaborone
---------------------------------------------------------------------------------------------------
Brazil Citibank N.A.
Sao Paulo; and
BankBoston, N.A.
Sao Paulo
---------------------------------------------------------------------------------------------------
Bulgaria ING Bank N.V.
Sofia
---------------------------------------------------------------------------------------------------
Canada Canadian Imperial Bank of Commerce
Toronto; and
Royal Bank of Canada
Toronto
---------------------------------------------------------------------------------------------------
Chile Citibank X.X.
Xxxxxxxx
---------------------------------------------------------------------------------------------------
China The Hongkong and Shanghai Banking Corporation Ltd
(Shenzhen and Shanghai)
---------------------------------------------------------------------------------------------------
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Santa Fe de Bogota
---------------------------------------------------------------------------------------------------
Croatia Privredna Banka Zagreb d.d.
Zagreb
---------------------------------------------------------------------------------------------------
Cyprus The Cyprus Popular Bank Ltd.
Nicosia
---------------------------------------------------------------------------------------------------
Czech Republic Ceskoslovenska Obchodni Banka, A.S.
Prague
---------------------------------------------------------------------------------------------------
Denmark Danske Bank A/S
Copenhagen
---------------------------------------------------------------------------------------------------
Ecuador Citibank N.A.
Quito
---------------------------------------------------------------------------------------------------
Egypt Citibank N.A.
Cairo
---------------------------------------------------------------------------------------------------
32
---------------------------------------------------------------------------------------------------
COUNTRIES/MARKETS ELIGIBLE FOREIGN CUSTODIANS
---------------------------------------------------------------------------------------------------
Estonia Hansabank
Tallinn
---------------------------------------------------------------------------------------------------
Finland Xxxxxx Bank Ltd.
Helsinki
---------------------------------------------------------------------------------------------------
France BNP Paribas S.A.
Paris; and
Societe Generale
Paris; and
Credit Agricole Indosuez
Paris
---------------------------------------------------------------------------------------------------
Germany Dresdner Bank A.G.
Frankfurt
---------------------------------------------------------------------------------------------------
Ghana Barclays Bank of Ghana Limited
Accra
---------------------------------------------------------------------------------------------------
Greece Barclays Bank plc
Athens
---------------------------------------------------------------------------------------------------
Hong Kong The Chase Manhattan Bank
Hong Kong
The Hongkong and Shanghai Banking Corporation Limited
Hong Kong
---------------------------------------------------------------------------------------------------
Hungary Citibank Rt.
Budapest
---------------------------------------------------------------------------------------------------
India The Hong Kong and Shanghai Banking Corporation Limited
Mumbai; and
Deutsche Bank AG,
Bombay; and
Standard Chartered Bank
Mumbai
---------------------------------------------------------------------------------------------------
Indonesia The Hongkong and Shanghai Banking Corporation Limited
Jakarta; and
Standard Chartered Bank
Jakarta
---------------------------------------------------------------------------------------------------
Ireland Bank of Ireland
Dublin; and
Allied Irish Banks, plc
Dublin
---------------------------------------------------------------------------------------------------
Israel Bank Leumi le-Israel B.M.
Tel Aviv
---------------------------------------------------------------------------------------------------
Italy BNP Paribas S.A.
Milan
---------------------------------------------------------------------------------------------------
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Abidjan
---------------------------------------------------------------------------------------------------
Jamaica CIBC Trust and Merchant Bank Jamaica Limited
Kingston
---------------------------------------------------------------------------------------------------
Japan The Fuji Bank Limited
Tokyo
The Bank of Tokyo-Mitsubishi, Limited
Tokyo
---------------------------------------------------------------------------------------------------
Jordan Arab Bank Plc
Amman
---------------------------------------------------------------------------------------------------
33
---------------------------------------------------------------------------------------------------
COUNTRIES/MARKETS ELIGIBLE FOREIGN CUSTODIANS
---------------------------------------------------------------------------------------------------
Kazakhstan ABN AMRO Bank Kazakhstan
Almaty
---------------------------------------------------------------------------------------------------
Kenya Barclays Bank of Kenya Limited
Nairobi
---------------------------------------------------------------------------------------------------
Latvia A/S Hansabanka
Riga
---------------------------------------------------------------------------------------------------
Lebanon HSBC Bank Middle East
Ras-Beirut
---------------------------------------------------------------------------------------------------
Lithuania Vilniaus Bankas AB
Vilnius
---------------------------------------------------------------------------------------------------
Luxembourg Banque Generale du Luxembourg S.A.
Luxembourg
---------------------------------------------------------------------------------------------------
Malaysia The Chase Manhattan Bank (M) Berhad
Kuala Lumpur; and
HSBC Bank Malaysia Berhad
Kuala Lumpur
---------------------------------------------------------------------------------------------------
Mauritius The Hongkong & Shanghai Banking Corporation Limited
Mauritius
---------------------------------------------------------------------------------------------------
Mexico Chase Manhattan Xxxx Xxxxxx S.A.
Mexico, D.F.; and
Citibank Mexico, S.A.
Mexico, D.F.
---------------------------------------------------------------------------------------------------
Morocco Banque Commerciale du Maroc S.A.
Casablanca
---------------------------------------------------------------------------------------------------
Namibia Standard Bank Namibia Limited
Windhoek
---------------------------------------------------------------------------------------------------
Netherlands ABN AMRO N.V.
De Breda; and
Fortis Bank (Nederland) N.V.
Amsterdam
---------------------------------------------------------------------------------------------------
New Zealand National Nominees Limited
Auckland
---------------------------------------------------------------------------------------------------
*Nigeria Stanbic Merchant Bank Nigeria Limited
Lagos
---------------------------------------------------------------------------------------------------
Norway Den norske Bank ASA
Oslo
---------------------------------------------------------------------------------------------------
Oman HSBC Bank Middle East
Muscat
---------------------------------------------------------------------------------------------------
Pakistan Citibank, N.A.,
Karachi; and
Deutsche Bank AG,
Karachi; and
Standard Chartered Bank
Karachi
---------------------------------------------------------------------------------------------------
Peru Citibank, N.A.
Lima
---------------------------------------------------------------------------------------------------
Philippines The Hongkong and Shanghai Banking Corporation Limited
Pasig City
---------------------------------------------------------------------------------------------------
Poland Bank Handlowy w. Warszawie S.A.
Warsaw; and
---------------------------------------------------------------------------------------------------
34
--------------------------------------------------------------------------------------------------
COUNTRIES/MARKETS ELIGIBLE FOREIGN CUSTODIANS
---------------------------------------------------------------------------------------------------
Bank Polska Kasa Opieki S.A.
Warsaw; and
Citibank (Poland) S.A.
Warsaw
--------------------------------------------------------------------------------------------------
Portugal Banco Espirito Santo e Commercial de Lisboa, S.A.
Lisbon
Banco Comercial Portugues, S.A.
Lisbon
--------------------------------------------------------------------------------------------------
Romania ABN-AMRO Bank (Romania) S.A.
Bucharest; and
ING Bank
Bucharest
--------------------------------------------------------------------------------------------------
*Russia Chase Manhattan Bank International
Moscow; and
Credit Suisse First Boston Bank AO
Moscow
--------------------------------------------------------------------------------------------------
Singapore Standard Chartered Bank
Singapore
--------------------------------------------------------------------------------------------------
Slovak Republic Ceskoslovenska Obchodni Banka, A.S.
Bratislava
--------------------------------------------------------------------------------------------------
Slovenia Bank Austria Creditanstalt d.d. Ljubljana
Ljubljana
--------------------------------------------------------------------------------------------------
South Africa The Standard Bank of South Africa Limited
Johannesburg
--------------------------------------------------------------------------------------------------
South Korea The Hongkong and Shanghai Banking Corporation Limited
Seoul; and
Standard Chartered Bank
Seoul
--------------------------------------------------------------------------------------------------
Spain Chase Manhattan Bank CMB, X.X.
Xxxxxx
--------------------------------------------------------------------------------------------------
Sri Lanka The Hongkong and Shanghai Banking Corporation Limited
Colombo
--------------------------------------------------------------------------------------------------
Sweden Skandinaviska Enskilda Banken
Stockholm
--------------------------------------------------------------------------------------------------
Switzerland UBS AG
Zurich
--------------------------------------------------------------------------------------------------
Taiwan The Chase Manhattan Bank
Taipei
The Hongkong and Shanghai Banking Corporation Limited
Taipei
--------------------------------------------------------------------------------------------------
Thailand The Chase Manhattan Bank
Bangkok; and
Standard Chartered Bank
Bangkok
--------------------------------------------------------------------------------------------------
Tunisia Banque Internationale Arabe de Tunisie
Tunis
--------------------------------------------------------------------------------------------------
Turkey The Chase Manhattan Bank
Istanbul
--------------------------------------------------------------------------------------------------
*Ukraine ING Bank Ukraine
Kiev
--------------------------------------------------------------------------------------------------
35
--------------------------------------------------------------------------------------------------
COUNTRIES/MARKETS ELIGIBLE FOREIGN CUSTODIANS
---------------------------------------------------------------------------------------------------
United Kingdom The Chase Manhattan Bank
London
--------------------------------------------------------------------------------------------------
Uruguay BankBoston, N.A.
Montevideo
--------------------------------------------------------------------------------------------------
United States The Chase Manhattan Bank
New York
--------------------------------------------------------------------------------------------------
Venezuela Citibank, N.A.
Caracas
--------------------------------------------------------------------------------------------------
Zambia Barclays Bank of Zambia Limited
Lusaka
--------------------------------------------------------------------------------------------------
Zimbabwe Barclays Bank of Zimbabwe Limited
Harare
--------------------------------------------------------------------------------------------------
* RESTRICTED SERVICE ONLY. PLEASE CONTACT YOUR RELATIONSHIP MANAGER FOR FURTHER
INFORMATION.
N.B. ADDITIONAL OPERATIONAL/LEGAL DOCUMENTATION MAY BE REQUIRED IN CERTAIN
MARKETS. PLEASE REFER TO YOUR RELATIONSHIP MANAGER.
36
SCHEDULE 2
TAIWAN RIDER
All defined terms used in this Rider shall, unless otherwise defined herein,
have the meanings ascribed thereto in the Custody Agreement. Save as expressly
provided in this Rider, all terms of the Custody Agreement shall apply to
services performed with respect to investments in the Republic of China ("R.O.C.
Services") provided that, as regards to R.O.C. Services, in the event of any
conflict between this Rider and the Custody Agreement, this Rider shall prevail.
The parties agree as follows as regards the R.O.C. Services:
1. INVESTMENT REGULATIONS, FILING OF REPORTS
The Fund acknowledges that the services rendered hereunder are
being rendered in connection with the Fund's investments in the
R.O.C. ("R.O.C. Investments") under the Regulations Governing
Securities Investment by Overseas Chinese and Foreign Investors and
Procedures for Remittances and related laws, regulations,
guidelines, orders and policies (collectively, as amended and
supplemented from time to time, "R.O.C. Investment Regulations")
and represents and warrants to, and agrees with, Chase as follows
with respect thereto:
(i) The Fund is permitted under the R.O.C. Investment Regulations
to make the investments contemplated herein and as a
condition to the performance of Chase's obligations
hereunder, the Adviser shall obtain or complete, as
applicable, and provide evidence to Chase that it has
obtained or completed as applicable, all required R.O.C.
government approvals or procedures necessary for the making
of R.O.C. Investments on behalf of the Fund.
(ii) Notwithstanding anything to the contrary contained in the
Custody Agreement, (a) Chase shall not be obliged to do any
act which would, in Chase's reasonable judgement, violate the
R.O.C. Investment Regulations including, but not limited to,
any advance of funds with respect to R.O.C. Investments and
(b) the Fund authorises Chase to do all reasonable acts,
including disclosure of information, filing of reports and
countersigning of broker confirmations as is required by the
R.O.C. Investment Regulations including, if section 2 (ii)
below applies, the relevant Agency Functions (defined below).
(iii) If legally required, the Fund shall ensure that the relevant
Fund duly appoints a tax guarantor as contemplated by the
R.O.C. Investment Regulations ("Tax Guarantor") and in such
case, shall at all times during the term hereof ensure that
the Fund continues to have a Tax Guarantor, which the Fund
acknowledges is not Chase's Taipei Branch.
2. AGENCY FUNCTIONS
(i) The Fund acknowledges that the R.O.C. Investment Regulations
require the Fund to appoint an agent or agents to carry out
the agency functions contemplated thereby ("Agency
Functions").
(ii) If the Fund elects or is required to appoint Chase to perform
any of such Agency
37
Functions, the Fund shall execute all such powers of attorney
and other documents as the Chase may reasonably require to
perform such functions and the provisions of the Custody
Agreement shall apply thereto.
(iii) If the Fund does not so appoint Chase, Chase shall not,
notwithstanding anything to the contrary contained in the
Custody Agreement, be required to perform the Agency
Functions and the agent(s) so appointed by the Fund shall be
authorised to give Instructions with respect to the R.O.C.
Investments of the Fund.
38
SCHEDULE 0
Xxx Xxxxx Xxxxxxxxx Xxxx
Xxxxxx & Xxxxxx Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Dear Sirs
Please accept this letter as an Instruction pursuant to the Global Custody
Agreement dated 2003 between The Chase Manhattan Bank ("Chase") and Xxxxxxxx
Entity (the "Fund"). This Instruction relates solely to transactions in
securities to be settled by Chase's Eligible Foreign Custodian in Taiwan
("Taiwanese Trades").
In light of the fact that the penalties under Taiwanese law for failing a
Taiwanese Trade may exceed the risk to the Fund of Chase Taipei not settling
such trade due to incomplete, miss-matching or missing instructions, the Parties
agree to the following operating procedures.
In the normal course of events, the Fund will report Taiwanese Trades to Chase
in Bournemouth ("Chase Bournemouth"), giving notice either to deliver or to
receive shares to or from a specified broker account against payment. Chase
Bournemouth will pass these instructions to Chase's Eligible Foreign Custodian
in Taiwan ("Chase Taipei"). Chase Taipei will then settle the transaction on the
specified settlement date.
In the event that Chase Taipei has not received valid instructions from Chase
Bournemouth or there is a discrepancy with respect to a trade which appears to
be for the account of the Fund which has been advised to Chase Taipei either:
1. by way of a broker confirmation from a broker or the Taiwanese Agent of a
broker appearing on the Approved Broker List ("an Approved Broker")
attached hereto as Schedule 4, as may be amended from time to time by the
Fund or
2. through the list of pending trades provided by the Taiwan Securities
Central Depository ("the TSCD") as being a trade by an Approved Broker for
the account of the Fund,
it is hereby agreed that Chase Taipei will, in the first instance attempt to
contact the broker to ascertain the details of the alleged trades. In the event
of a discrepancy between the trade details shown by the TSCD and those provided
by the Approved Broker when contacted by Chase Taipei, the details provided by
the Approved Broker shall prevail. Chase Taipei shall then as soon as reasonably
practicable contact Chase Bournemouth to obtain instructions matching the
details provided by the Approved Broker or to resolve any discrepancy between
such details and the instructions provided by Chase Bournemouth. If Chase
Bournemouth is unable to provide the instructions or to resolve the discrepancy,
Chase Bournemouth will as soon as reasonably practicable contact SIMNA to obtain
instructions and will pass such instructions promptly to Chase Taipei for
action.
If Chase Taipei has not obtained valid instructions from Chase Bournemouth prior
to the point at which Chase Taipei must act if the trade is to be prevented from
failing, Chase Taipei shall, provided that the Broker is on the approved list in
Schedule 4 request the local Taiwanese broker to give a written undertaking
addressed to Chase Taipei, substantially in the form annexed here as Schedule 5.
The Fund agrees, however, that Chase may then act upon such undertaking, which
it reasonably believes is on the Approved Broker's headed paper and signed by a
person representing to be an authorised signature of the Approved Broker,
without further enquiry. If, however, for any reason whatsoever the Approved
Broker refuses to give such undertaking, Chase Taipei is hereby
39
authorised to settle any such trade without further investigation or
confirmation from Chase Bournemouth or the Fund on the basis of the information
that it has from an Approved Broker. Where such action is taken, Chase Taipei
will as soon as reasonably practicable inform Chase Bournemouth. Chase
Bournemouth will in turn as soon as reasonably practicable inform the Fund.
The Fund hereby agrees to indemnify Chase Taipei against all liabilities,
losses, damages, claims, costs, demands and actions, which it may suffer or
incur directly or indirectly in any way in connection with following these
procedures and instructions with respect to the Taiwanese Trades of the Fund
other than those arising from the negligence, wilful default, bad faith or
failure by Chase to follow the aforesaid procedures and instructions.
By:
---------------------------------------------
For and on behalf of JPMORGAN CHASE BANK
By: /s/ XXXXXXX XXXXXXX
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------------------
Title: VP
---------------------------------------------
For and on behalf of Xxxxxxxx Global Series Trust
By: /s/ XXXXXXXXX XXXXX
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
---------------------------------------------
Title: President
---------------------------------------------
40
SCHEDULE 4
APPROVED BROKER LIST
--------------------------------------------------------------------------------
APPROVED BROKER BROKER'S TAIWANESE AGENT
--------------------------------------------------------------------------------
Capital Securities Corporation
--------------------------------------------------------------------------------
China Securities Corporation
--------------------------------------------------------------------------------
Grand Cathay Securities Corporation
--------------------------------------------------------------------------------
Jardine Xxxxxxx Taiwan Securities Ltd.
--------------------------------------------------------------------------------
Masterlink Securities Corporation
--------------------------------------------------------------------------------
National Securities Corporation
--------------------------------------------------------------------------------
SBC Warburg Securities Ltd.
--------------------------------------------------------------------------------
ABN AMRO Hoare Govett Asia Limited
--------------------------------------------------------------------------------
HSBC Xxxxx Xxxxx Taiwan Limited
--------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated Taiwan
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx International Limited
--------------------------------------------------------------------------------
41
SCHEDULE 5
MISMATCHED TRADE SETTLEMENT UNDERTAKING FROM THE BROKER TO THE CLIENT'S
TAIWANESE ELIGIBLE FOREIGN CUSTODIAN
[ON BROKERS HEADED PAPER]
TO: CHASE TAIPEI
We, [name of broker] hereby confirm that all trades made on [insert date]
for [insert official name of client] ("the Client") are valid trades
executed by us on the instructions of Xxxxxxxx Global Series Fund. In
order to protect the Client from failed settlement penalties, please
settle the trades in the designated settlement date. To enable Chase
Taipei to proceed with settlement notwithstanding mismatched or missing
instructions from Xxxxxxxx Global Series Trust, we hereby irrevocably
undertake to bear all costs, losses and expenses incurred in reversing
the settlement of a mismatched trade should it subsequently be determined
that the trade was not duly authorised and validly executed for the
account of Xxxxxxxx Global Series Fund.
-----------------------------------------
AUTHORISED SIGNATORY
42
SCHEDULE 6
INFORMATION REGARDING COUNTRY RISK
1. To aid the Fund in its determinations regarding Country Risk, Chase shall
furnish annually and upon the initial placing of Financial Assets and cash
into a country the following information:
A. Opinions of local counsel concerning:
1. Whether applicable foreign law would restrict the access
afforded the Fund's independent public accountants to books
and records kept by an Eligible Foreign Custodian located in
that country.
2. Whether applicable foreign law would restrict the Fund's
ability to recover its Foreign Assets in the event of the
bankruptcy of an Eligible Foreign Custodian located in that
country.
3. Whether applicable foreign law would restrict the Fund's
ability to recover Foreign Assets that are lost while under
the control of an Eligible Foreign Custodian located in the
country.
B. Written information concerning:
1. The foreseeability of expropriation, nationalization,
freezes, or confiscation of the Fund's Foreign Assets.
2. Whether difficulties in converting the Fund's cash and cash
equivalents to U.S. dollars are reasonably foreseeable.
C. A market report with respect to the following topics:
(1) securities regulatory environment, (2) foreign ownership
restrictions, (3) foreign exchange, (4) securities settlement
and registration, (5) taxation and (6) depositories
(including depository evaluation), if any.
2. To aid the Fund in monitoring Country Risk, Chase shall furnish Board
additionally with market flashes, including with respect to changes in the
information in market reports.
43
SCHEDULE 7
ELIGIBLE SECURITIES DEPOSITORIES
44
EXHIBIT A
PERSONS AUTHORISED BY THE FUND TO GIVE INSTRUCTIONS
45
EXHIBIT B
PORTFOLIOS OF THE FUND
Xxxxxxxx North American Equity Fund
46
SIGNED by
For and on behalf of
JPMORGAN CHASE BANK
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: Vice President
For and on behalf of Xxxxxxxx Global Series Trust
For and on behalf of
XXXXXXXX GLOBAL SERIES TRUST, SEPARATELY ON BEHALF OF EACH PORTFOLIO
LISTED ON EXHIBIT B HERETO.
By: /s/ XXXXXXXXX XXXXX
Name: Xxxxxxxxx Xxxxx
Title: President
47
