Exhibit (j)(2)
September 28, 2000
BETWEEN
DEUTSCHE BANK (MAURITIUS) LIMITED
AND
THE INDIA FUND, INC.
CASH CUSTODY AGREEMENT
TABLE OF CONTENTS
PAGE
1. Definitions...............................................................1
2. Appointment and Designated Accounts.......................................1
3. Services..................................................................2
4. Limitations on Liability and Indemnity....................................3
5. Client's Instructions.....................................................4
6. Reports and Statements....................................................4
7. Fees and Expenses.........................................................4
8. Credit Lines..............................................................5
9. Termination...............................................................5
10. No Waiver.................................................................5
11. Assignment................................................................5
12. Communications............................................................5
13. Compliance with Mauritius Laws and Market Practice........................5
14. Severability..............................................................6
15. Governing Law and Jurisdiction............................................6
16. Process Agent.............................................................6
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THIS AGREEMENT dated September 28, 2000 is made BETWEEN:
1. Deutsche Bank (Mauritius) Limited, whose registered office is 4th Floor,
Barkly Wharf, Le Caudan Waterfront, Port Louis, Mauritius, a corporation
existing under the laws of Mauritius, ("the Bank"), and
2. THE INDIA FUND, INC. whose principal place of business is at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, XXX ("the Client"),
WHEREAS: The Client wishes to appoint the Bank as custodian in Mauritius
in respect of foreign currency held by the Client as Custodian
for its customers and the Bank agrees to such appointment.
WHEREBY IT IS HEREBY AGREED as follows:
1. DEFINITIONS
-----------
"Authorised Person(s)" means the person(s) authorised to give
instructions to the Bank in connection with the Services as notified
from time to time in such manner as the Bank requires.
"Bank" means Deutsche Bank (Mauritius) Limited, acting through its
office in Mauritius whose address is 0xx Xxxxx, Xxxxxx Xxxxx, Xx Xxxxxx
Waterfront, Port Louis, Mauritius and its successors and assigns and,
unless the context permits, includes any person appointed by the Bank.
"Person" includes an individual, firm, company, corporation and an
unincorporated body of persons;
"Process Agent" means the person, if any, whose name and address are
specified in the Schedule;
"Cash" means the cash which is deposited with the Bank by the Client.
"Services" means the services referred to in clause 3 in relation to
Cash.
"Cash Account" means any bank account for the deposit of cash including
without limiting the generality of the foregoing overdraft, current or
deposit accounts which such accounts are to be operated on the
instructions of the Authorized Person(s), and
"This Agreement" means the within agreement (including any schedule(s)
or supplement(s) attached) as varied from time to time.
2. APPOINTMENT AND DESIGNATED ACCOUNTS
-----------------------------------
(A) The Bank agrees to act as banker and custodian in relation to
Cash which the Client may from time to time deposit with the
Bank.
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(B) The Bank's appointment shall commence on September 28, 2000 and
shall continue until terminated by the Client or the Bank, in
accordance with Clause 9 of this Agreement.
3. SERVICES
--------
3.1. The Bank is hereby appointed and authorised by the Client to perform all
or any of the following Services on behalf of the Client but the bank
reserves the right to refuse to do so if in its opinion there are
reasonable grounds for such refusal;
(a) to hold or to arrange for cash to be held;
(b) to provide such other services as the Bank and the Client may
from time to time agree.
3.2. In providing the Services, the Bank shall:
(a) open and maintain Cash Accounts in the Client's name, designated
as the Client shall require in accordance with Clause 3.5 and
credit and debit such accounts in accordance with the
instructions from the Authorised Persons.
(b) maintain up to date records which identify such Cash Accounts in
such a way as to clearly distinguish them from cash accounts
held for other Persons.
(c) pay interest on credit balances on the Cash Accounts at the
Bank's prevailing rates for comparable accounts.
3.3. The Bank is authorised, at its discretion, to take such steps as it may
consider expedient to enable it to provide the Services and to exercise
its powers under this Agreement, including the right:
(a) to comply with any law, regulation, order, directive, notice or
request of any government agency (whether or not having the
force of law) requiring the Bank to take or refrain from action;
(b) on behalf of the Client to withhold and/or make payment of any
taxes or duties properly payable on or in respect of the cash.
3.4. The Bank will maintain insurance cover in respect of professional
negligence, employees fidelity and all risk cover in respect of Cash
held in the Cash Accounts.
3.5. Upon the written request of the Client the Bank may maintain one or more
Cash Accounts, each such account being designated in such manner so as
to distinguish it as a separate account. Upon such additional accounts
being established, the Bank shall provide services in relation thereto
pursuant to the provision of this Agreement.
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4. LIMITATIONS ON LIABILITY AND INDEMNITY
--------------------------------------
4.1. The provision of the Services constitutes the Bank as a custodian of the
Cash but does not constitute the Bank a trustee and the Bank shall have
no trust or other obligations in respect of the Cash except those
contained in this Agreement.
4.2. Subject to Clause 13.1, the Bank shall not be liable for any taxes or
duties payable on or in respect of the cash nor for the management of or
the diminution of the balance of the cash.
4.3. The Bank shall act with all due care, skill and diligence and shall
indemnify the Client against all or any losses, claims, liabilities,
damages, reasonable costs and expenses of any kind which may be incurred
by the Client and all actions and proceedings which may be brought
against the Client as a result of the provision of the Services by the
Bank to the extent that such losses, claims, liabilities, damages,
expenses, actions and proceedings are due to the negligence, fraud or
wilful default of the Bank, or any other person appointed by it or their
respective officers or employees and this indemnity shall continue
notwithstanding the termination of this Agreement in respect of losses,
claims, liabilities, damages, reasonable costs and expenses resulting
from facts or events which occurred prior to such termination. The
Client shall promptly inform the bank of any such claims, actions or
proceedings in respect of which any indemnity is sought under this
Agreement.
4.4. The Client shall indemnify the bank against all claims, liabilities,
damages, reasonable costs and expenses of any kind which may be incurred
by it and all actions or proceedings which may be brought against it, in
connection with the provision of the Services unless due to the
negligence, fraud or wilful default of the bank, any person appointed by
it, or their respective officers or employees and this indemnity shall
continue notwithstanding the termination of this Agreement in respect of
claims, liabilities, damages, reasonable costs and expenses resulting
from facts or events which occurred prior to such termination. The Bank
shall promptly inform the Client of any such claims, actions or
proceedings in respect of which any indemnity is sought under this
Agreement.
4.5. In relation to the Bank's responsibilities and duties under this
Agreement, the Bank shall not be held liable for or in respect of any
loss or damage or failure to comply or delay in complying with its
obligations, hereunder which is caused directly or indirectly by any
cause, event or circumstance whatsoever beyond the Banks reasonable
control including force majeure, Act of God, war or other military
action, political unrest, government action, act of terrorism, boycott,
embargo or other form of sanction, strike or other industrial dispute,
fire, flood, earthquake or other form of natural disaster, adverse
weather conditions, explosion, default of carrier (unless such carrier
is an officer or employee of the Bank).
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5. CLIENT'S INSTRUCTIONS
---------------------
5.1. In a case where this Agreement requires the instructions of the Client
to be given, the Bank is authorised to act on the written instructions
of the Authorised Person(s) when given in accordance with Clause 12.
5.2. The Bank may, as its discretion, accept instructions reasonably believed
by it to have been issued by the Authorised Person(s) and in which case,
if it acts in good faith on such instructions, such instructions shall
be binding on the Client and the bank shall not be liable for doing so,
whether or not the instructions were given by the Authorised Person(s).
5.3. The Bank reserves the right to refuse to act on the instructions of the
Client which is reasonably believed not to have been issued in
accordance with the provisions of this Agreement or if in its reasonable
opinion, it believes compliance with the instruction would be
impracticable or would give rise to breach of applicable law or
regulation. Any such refusal to act will be notified to the Client as
soon as may be practicable.
6. REPORTS AND STATEMENTS
----------------------
6.1. The Bank shall provide the Client and any other person notified to the
Bank by the Client with such reports and statements concerning the Cash
Accounts and at such intervals as agreed between them from time to time.
The Bank will also inform the Client and such other persons as soon as
it becomes aware that any legal action is instituted by any person
concerning the Services.
6.2. The duly authorised representatives of the Client shall be allowed
access to the Bank's records which identify the Cash after giving
reasonable prior notice to the Bank.
6.3. Subject to Clause 6.4, the Bank shall provide the Client and any other
person notified to the Bank by the Client with such information as the
Client and such other persons may reasonably request concerning the
operation facilities and methods which the Bank employs in providing the
Services.
6.4. The Bank shall not, however, be required to provide such reports,
statements, access and/or information if to do so would contravene any
law, regulation, order, directive, notice or request of any government
agency, whether or not having the force of law, in the case of access
and/or information if to do so would prejudice the security, operations
or business of the bank or its duties of confidentiality.
7. FEES AND EXPENSES
-----------------
7.1. The Client shall pay fees to the Bank for the provision of the Services
as agreed between them from time to time.
7.2. The Client shall also pay to the Bank all other reasonable expenses
incurred by the Bank or any other person appointed by it in the
provision of the Services, as agreed between them from time to time.
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8. CREDIT LINES
------------
8.1. The Client hereby authorises any Authorised Person(s) from time to time
to arrange with the Bank in Mauritius for financial accommodation from
the Bank to the Client by way of discount, loan, overdraft facility or
otherwise such financial accommodation to be upon such terms and
conditions as such Authorised Person(s) shall consider appropriate.
However, nothing in this sub-clause shall oblige the Bank to provide
such financial accommodation.
9. TERMINATION
-----------
9.1. This Agreement may be terminated by the Bank or the Client giving not
less than 90 days' notice to the other and by the one party giving
notice of immediate termination to the other any time after the other
party has contravened any of the provisions of this Agreement.
9.2. Any termination of this Agreement and any withdrawals of Cash, whether
or not following termination shall be without prejudice to the right of
the Bank to settle any transactions entered into or to settle any
liability incurred by the Client under this Agreement or by the Bank on
behalf of the Client prior to termination and/or, as its discretion to
cancel unexecuted instructions.
10. NO WAIVER
---------
No act or omission by the Bank pursuant to this Agreement shall affect
its rights, powers and remedies hereunder or any further or other
exercise of such rights, powers or remedies.
11. ASSIGNMENT
----------
Neither the Bank nor the Client may assign or transfer any of its rights
or obligations hereunder without the prior written consent of the other
provided this Agreement shall inure for the benefit of the Bank and for
the benefit of its successors in title or assignee including any person
to which the whole or any part of the operations of the Bank may from
time to time be transferred or vested by operation of law or otherwise.
12. COMMUNICATIONS
--------------
Any notice, demand or other communication under this Agreement shall be
in writing addressed to the Client or the Bank (as the case may be) at
the address set out in the Schedule or such other address as any party
may notify to the other and may be delivered personally, by leaving it
at such address, by post or by tested telex, or Swift instruction.
13. COMPLIANCE WITH MAURITIUS LAWS AND MARKET PRACTICE
--------------------------------------------------
13.1. The Client acknowledges that before the Bank shall be allowed to provide
the Services in Mauritius the Client will need to obtain necessary
clearances and accreditation from the Mauritian regulatory authorities.
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13.2. The Client acknowledges that pursuant to Mauritius law the Bank may
become directly liable in respect of income tax assessed upon income
derived from Cash situated in Mauritius notwithstanding that the Bank is
not the beneficial owner of such Cash. Therefore, for the sake of
clarification and without limiting the generality of anything contained
in the Agreement the Client hereby indemnifies the Bank in respect of
such liability.
13.3. The Client agrees to advise the Bank upon request of the Client's
nationality and/or domicile and without limitation to the generality of
anything contained in the Agreement the Client confirms that the Bank is
authorised to disclose such information to any Mauritius government
agency.
14. SEVERABILITY
------------
Each of the provisions of this Agreement is severable and distinct from
the others and, if one or more of such provisions is or become illegal,
invalid or unenforceable, the remaining provisions shall not be affected
in any way.
15. GOVERNING LAW AND JURISDICTION
------------------------------
15.1. This Agreement is governed by and shall be construed in accordance with
the laws of Mauritius.
15.2. Any litigation arising hereunder shall be submitted to the non-exclusive
jurisdiction of the Courts of Mauritius.
16. PROCESS AGENT
-------------
If a Process Agent is specified in the Schedule, service of any legal
process on the Process Agent shall constitute service on the Client in
the relevant Territory.
In witness whereof this Agreement has been executed by the parties on the date
started in the heading hereof.
This Agreement has been drawn up in two originals.
SIGNED for and on behalf of the Client
Signature: ________________________________
Name: Xxxxx XxXxxxxx
--------------------------------------
Office: ___________________________________
Identification: ___________________________
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SIGNED for and on behalf of the Bank
Signature: ________________________________
Name: _____________________________________
Office: ___________________________________
Signature: ________________________________
Name: _____________________________________
Office: ___________________________________
Schedule A - Process Agent
'The Bank' Deutsche Bank (Mauritius) Limited
4th Floor, Xxxxxxx Wharf East
Le Caudan Waterfront
Port Louis, Mauritius
Tel: (000) 000 0000
Fax: (000) 000 0000
'The Client' THE INDIA FUND, INC.
c/o CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
