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FORM OF
GLOBAL CUSTODY AGREEMENT
BETWEEN
ASA (Bermuda) Limited
AND
JPMORGAN CHASE BANK
___________________, 2004
GLOBAL CUSTODY AGREEMENT
TABLE OF CONTENTS
1. INTENTION OF THE PARTIES; DEFINITIONS------------------------------------1
1.1 INTENTION OF THE PARTIES-----------------------------------------------1
1.2 DEFINITIONS------------------------------------------------------------1
2. WHAT BANK IS REQUIRED TO DO-----------------------------------------------3
2.1 SET UP ACCOUNTS--------------------------------------------------------3
2.2 SUBCUSTODIANS----------------------------------------------------------4
2.3 USE OF AGENTS----------------------------------------------------------5
2.4 SEGREGATION OF ASSETS; NOMINEE NAME------------------------------------5
2.5 SETTLEMENT OF TRADES---------------------------------------------------6
2.6 CONTRACTUAL SETTLEMENT DATE ACCOUNTING---------------------------------7
2.7 ACTUAL SETTLEMENT DATE ACCOUNTING--------------------------------------7
2.8 INCOME COLLECTION (AUTOCREDIT(R))--------------------------------------7
2.9 CERTAIN MINISTERIAL ACTS-----------------------------------------------8
2.10 CORPORATE ACTIONS------------------------------------------------------8
2.11 PROXIES----------------------------------------------------------------9
2.12 STATEMENTS------------------------------------------------------------11
2.13 ACCESS TO BANK'S RECORDS----------------------------------------------11
2.14 MAINTENANCE OF FINANCIAL ASSETS AT SUBCUSTODIAN LOCATIONS-------------11
2.15 TAX RECLAIMS----------------------------------------------------------12
2.16 FOREIGN EXCHANGE TRANSACTIONS-----------------------------------------12
2.17 COMPLIANCE WITH SEC RULE 17F-5----------------------------------------12
2.18 COMPLIANCE WITH SEC RULE 17F-7----------------------------------------13
3. INSTRUCTIONS-------------------------------------------------------------13
3.1 ACTING ON INSTRUCTIONS; UNCLEAR INSTRUCTIONS--------------------------13
3.2 CONFIRMATION OF ORAL INSTRUCTIONS/ SECURITY DEVICES-------------------14
3.3 INSTRUCTIONS; CONTRARY TO LAW/MARKET PRACTICE-------------------------14
3.4 CUT-OFF TIMES---------------------------------------------------------14
4. FEES EXPENSES AND OTHER AMOUNTS OWING TO BANK----------------------------15
4.1 FEES AND EXPENSES-----------------------------------------------------15
4.2 OVERDRAFTS------------------------------------------------------------15
4.3 BANK'S RIGHT OVER SECURITIES; SET-OFF--------------------------------15
5. ADDITIONAL PROVISIONS RELATING TO CUSTOMER-------------------------------16
5.1 REPRESENTATIONS OF CUSTOMER AND BANK----------------------------------16
5.2 CUSTOMER TO PROVIDE CERTAIN INFORMATION TO BANK-----------------------16
5.3 CUSTOMER IS LIABLE TO BANK EVEN IF IT IS ACTING FOR ANOTHER PERSON----16
6. WHEN BANK IS LIABLE TO CUSTOMER------------------------------------------16
6.1 STANDARD OF CARE; LIABILITY-------------------------------------------16
6.2 LIABILITY FOR SUBCUSTODIANS-------------------------------------------17
6.3 LIABILITY OF SECURITIES DEPOSITORIES----------------------------------18
6.4 FORCE MAJEURE---------------------------------------------------------18
6.5 BANK CAN CONSULT WITH COUNSEL-----------------------------------------18
6.6 BANK PROVIDES DIVERSE FINANCIAL SERVICES AND MAY GENERATE
PROFITS AS A RESULT---------------------------------------------------18
7. TAXATION-----------------------------------------------------------------19
7.1 TAX OBLIGATIONS-------------------------------------------------------19
7.2 TAX RECLAIMS----------------------------------------------------------19
8. TERMINATION--------------------------------------------------------------20
9. MISCELLANEOUS------------------------------------------------------------20
9.1 NOTICES---------------------------------------------------------------20
9.2 SUCCESSORS AND ASSIGNS------------------------------------------------21
9.3 INTERPRETATION--------------------------------------------------------21
9.4 ENTIRE AGREEMENT------------------------------------------------------21
9.5 INSURANCE-------------------------------------------------------------21
9.6 GOVERNING LAW AND JURISDICTION----------------------------------------21
9.7 SEVERABILITY; WAIVER; AND SURVIVAL------------------------------------22
9.8 COUNTERPARTS----------------------------------------------------------22
FORM OF
GLOBAL CUSTODY AGREEMENT
This Agreement, dated ____________________, 200__, is between JPMORGAN
CHASE BANK ("BANK"), with a place of business at ______________
________________; and _____________________ ("CUSTOMER") with a place of
business at __________________.
1. INTENTION OF THE PARTIES; DEFINITIONS
1.1 INTENTION OF THE PARTIES.
------------------------
(a) This Agreement sets out the terms governing custodial, settlement and
certain other associated services offered by Bank to Customer. Bank will be
responsible for the performance of only those Securities custody duties that are
set forth in this Agreement. Customer acknowledges that Bank is not providing
any legal, tax or investment advice in connection with the services hereunder.
(b) Investing in foreign markets may be a risky enterprise. The holding
of Financial Assets and cash in foreign jurisdictions may involve risks of loss
or other special considerations. Bank will not be liable for any loss that
results from the general risks of investing or Country Risk.
1.2 DEFINITIONS.
-----------
(a) As used herein, the following terms have the meaning hereinafter
stated.
"1940 ACT" means the Investment Company Act of 1940, and the rules and
regulations thereunder, as amended from time to time.
"ACCOUNT" has the meaning set forth in Section 2.1 of this Agreement.
"AFFILIATE" means an entity controlling, controlled by, or under common
control with, Bank.
"AFFILIATED SUBCUSTODIAN" means a Subcustodian that is an Affiliate.
"APPLICABLE LAW" means any statute, whether national, state or local,
applicable in the United States or any other country, the rules of the treaty
establishing the European Community, any other law, rule, regulation or
interpretation of any governmental entity, any applicable common law, and any
decree, injunction, judgment, order, ruling, or writ of any governmental entity.
"AUTHORIZED PERSON" means any person who has been designated by written
notice from Customer (or by any agent designated by Customer, including, without
limitation, an investment manager) to act on behalf of Customer hereunder. Such
persons will continue to be Authorized Persons until such time as Bank receives
Instructions from Customer (or its agent) that any such person is no longer an
Authorized Person.
"BANK INDEMNITEES" means Bank, its Subcustodians, and their respective
nominees, directors, officers, employees and agents.
"CASH ACCOUNT" has the meaning set forth in Section 2.1(a)(ii).
"CORPORATE ACTION" means any subscription right, bonus issue, stock
repurchase plan, redemption, exchange, tender offer, or similar matter with
respect to a Financial Asset in the Securities Account that require
discretionary action by the holder, but does not include proxy solicitations.
"COUNTRY RISK" means the risk of investing or holding assets in a
particular country or market, including, but not limited to, risks arising from
nationalization, expropriation or other governmental actions; the country's
financial infrastructure, including prevailing custody and settlement practices;
laws applicable to the safekeeping and recovery of Financial Assets and cash
held in custody; the regulation of the banking and securities industries,
including changes in market rules; currency restrictions, devaluations or
fluctuations; and market conditions affecting the orderly execution of
securities transactions or the value of assets.
"ENTITLEMENT HOLDER" means the person named on the records of a Securities
Intermediary as the person having a Securities Entitlement against the
Securities Intermediary.
"FINANCIAL ASSET" means a Security and refers, as the context requires,
either to the asset itself or to the means by which a person's claim to it is
evidenced, including a Security, a security certificate, or a Securities
Entitlement. "FINANCIAL ASSET" does not include cash.
"INSTRUCTIONS" means instructions which: (i) contain all necessary
information required by Bank to enable Bank to carry out the Instructions; (ii)
are received by Bank in writing or via Bank's electronic instruction system,
SWIFT, telephone, tested telex, facsimile or such other methods as are for the
time being agreed by Customer (or an Authorized Person) and Bank; and (iii) Bank
believes in good faith have been given by an Authorized Person or are
transmitted with proper testing or authentication pursuant to terms and
conditions which Bank may specify.
"LIABILITIES" means any liabilities, losses, claims, costs, damages,
penalties, fines, obligations, or expenses of any kind whatsoever (including,
without limitation, reasonable attorneys', accountants', consultants' or
experts' fees and disbursements).
"SEC" means the United States Securities and Exchange Commission.
"SEC ORDER" means an order issued by the SEC.
"SECURITIES" means stocks, bonds, rights, warrants and other negotiable
and non-negotiable instruments, whether issued in certificated or uncertificated
form, that are commonly traded or dealt in on securities exchanges or financial
markets. "SECURITIES" also means other obligations of an issuer, or shares,
2
participations and interests in an issuer recognized in the country in which it
is issued or dealt in as a medium for investment and any other property as may
be acceptable to Bank for the Securities Account.
"SECURITIES ACCOUNT" means each Securities custody account on Bank's
records to which Financial Assets are or may be credited pursuant hereto.
"SECURITIES DEPOSITORY" has the meaning set forth in Section 2.2 of this
Agreement.
"SECURITIES ENTITLEMENT" means the rights and property interests of an
Entitlement Holder with respect to a Financial Asset as set forth in Part 5 of
Article 8 of the Uniform Commercial Code of the State of New York, as the same
may be amended from time to time.
"SECURITIES INTERMEDIARY" means Bank, a Subcustodian, a Securities
Depository, and any other financial institution which in the ordinary course of
business maintains Securities custody accounts for others and acts in that
capacity.
"SUBCUSTODIAN" has the meaning set forth in Section 2.2 and includes
Affiliated Subcustodians.
(b) All terms in the singular will have the same meaning in the plural
unless the context otherwise provides and visa versa.
2. WHAT BANK IS REQUIRED TO DO
2.1 SET UP ACCOUNTS.
---------------
(a) Bank will establish and maintain the following accounts ("ACCOUNTS"):
(i) a Securities Account in the name of Customer for Financial
Assets, which may be received by or on behalf of Bank or its
Subcustodian for the account of Customer, including as an
Entitlement Holder; and
(ii) an account in the name of Customer ("CASH ACCOUNT") for any and
all cash in any currency received by or on behalf of Bank for
the account of Customer.
Notwithstanding paragraph (ii), cash held in respect of those markets where
Customer is required to have a cash account in its own name held directly with
the relevant Subcustodian or a Securities Depository will be held in that manner
and will not be part of the Cash Account.
(b) At the request of Customer, additional Accounts may be opened in the
future, which will be subject to the terms of this Agreement.
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2.2 SUBCUSTODIANS AND SECURITIES DEPOSITORIES.
-----------------------------------------
(a) Bank is authorized under this Agreement to act through and hold
Customer's Financial Assets with subcustodians, being at the date of this
Agreement the entities listed in Schedule 1 ("SUBCUSTODIANS"). Bank will use
reasonable care in the selection and continued appointment of such
Subcustodians. In addition, Bank and each Subcustodian may deposit Financial
Assets with, and hold Financial Assets in, any securities depository, settlement
system, dematerialized book entry system or similar system, being at the date of
this Agreement any entities listed in Schedule 2 ("SECURITIES DEPOSITORIES") on
such terms as such systems customarily operate and Customer will provide Bank
with such documentation or acknowledgements that Bank may require to hold the
Financial Assets in such systems.
(b) Any agreement Bank enters into with a Subcustodian for holding Bank's
customers' assets will provide that such assets will not be subject to any
right, charge, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors except a claim for payment for their safe custody
or administration, or, in the case of cash deposits, except for liens or rights
in favor of creditors of the Subcustodian arising under bankruptcy, insolvency
or similar law, and that the beneficial ownership thereof will be freely
transferable without the payment of money or value other than for safe custody
or administration. Where a Subcustodian deposits Securities with a Securities
Depository, Bank will cause the Subcustodian to identify on its records as
belonging to Bank, as agent, the Securities shown on the Subcustodian's account
at such Securities Depository. This Section 2.2(b) will not apply to the extent
of any special agreement or arrangement made by Customer with any particular
Subcustodian.
(c) The term Subcustodian as used herein shall mean the following:
(i) a `U.S. Bank,' which shall mean a U.S. bank as defined in Rule
17f-5(a)(7);
(ii) an `Eligible Foreign Custodian,' which shall mean: (i) a
banking institution or trust company, incorporated or organized
under the laws of a country other than the United States, that
is regulated as such by that country's government or an agency
thereof, and (ii) a majority-owned direct or indirect
subsidiary of a U.S. bank or bank holding company which
subsidiary is incorporated or organized under the laws of a
country other than the United States. In addition, an Eligible
Foreign Custodian shall also mean any other entity that shall
have been so qualified by exemptive order, rule or other
appropriate action of the SEC.
(iii) For purposes of clarity, it is agreed that as used in Section
6.2(a), the term Subcustodian shall not include any Eligible
Foreign Custodian as to which Bank has not acted as Foreign
Custody Manager.
(d) The term `securities depository' as used herein when referring to a
securities depository located outside the U.S. shall mean:
4
an "Eligible Securities Depository" which, in turn, shall have the
same meaning as in Rule 17f-7(b)(1)(i)-(vi) as the same may be
amended from time to time, or that has otherwise been made exempt
pursuant to an SEC Order.
(e) The term "securities depository" as used herein when referring to a
securities depository located in the U.S. shall mean a "securities depository"
as defined in Rule 17f-4(a).
2.3 USE OF AGENTS.
-------------
(a) Bank may provide certain services under this Agreement through third
parties, which may be Affiliates. Except to the extent provided in Section 2.2
with respect to Subcustodians, Bank will not be responsible for any loss as a
result of a failure by any broker or any other third party that it selects and
retains using reasonable care to provide ancillary services that it may not
customarily provide itself, including, without limitation, delivery services and
providers of information regarding matters such as pricing, proxy voting,
corporate actions and class action litigation. Nevertheless, Bank will be liable
for the performance of any such broker selected by Bank that is an Affiliate to
the same extent as Bank would have been liable if it performed such services
itself.
(b) In the case of the sale under Section 2.10 of a fractional interest
(or in other cases where Customer has requested Bank to arrange for execution of
a trade) Bank will place trades with a broker which is an Affiliate to the
extent that Bank has established a program for such trading with such Affiliate.
An affiliated broker may charge its customary commission (or retain its
customary spread) with respect to any such transaction.
2.4 SEGREGATION OF ASSETS; NOMINEE NAME.
-----------------------------------
(a) Bank will identify in its records that Financial Assets credited to
Customer's Securities Account belong to Customer (except as otherwise may be
agreed by Bank and Customer).
(b) To the extent permitted by Applicable Law or market practice, Bank
will require each Subcustodian to identify in its own records that Financial
Assets held at such Subcustodian by Bank on behalf of its customers belong to
customers of Bank, such that it is readily apparent that the Financial Assets do
not belong to Bank or the Subcustodian.
(c) Bank is authorized, in its discretion,
(i) to hold in bearer form, such Financial Assets as are
customarily held in bearer form or are delivered to Bank or its
Subcustodian in bearer form;
(ii) to hold Securities in or deposit Securities with authorized
Securities Depositaries; and
(iii) to register in the name of Customer, Bank, a Subcustodian, a
Securities Depository, or their respective nominees, such
5
Financial Assets as are customarily held in registered form.
(d) Bank is authorized, when directed to do so by Customer, to hold
Financial Assets at third parties and to register Financial Assets in broker
"street name" or in the name of other third parties (or their nominees).
Notwithstanding Section 6.1, Bank shall have no liability for any loss of
Financial Assets or other damages resulting from holding or registering
Financial Assets as so directed by the Customer.
Customer authorizes Bank or its Subcustodian to hold Financial Assets in omnibus
accounts and will accept delivery of Financial Assets of the same class and
denomination as those with Bank or its Subcustodian.
2.5 SETTLEMENT OF TRADES.
--------------------
(a) When Bank receives an Instruction directing settlement of a
transaction in Financial Assets that includes all information required by Bank,
Bank will use reasonable care to effect such settlement as instructed.
Settlement of transactions in Financial Assets will be conducted in accordance
with prevailing standards of the market in which the transaction occurs. Without
limiting the generality of the foregoing, the risk of loss will be Customer's
whenever Bank delivers Financial Assets or payment in accordance with applicable
market practice in advance of receipt or settlement of the expected
consideration. In the case of the failure of Customer's counterparty (or other
appropriate party) to deliver the expected consideration as agreed, Bank will
contact the counterparty to seek settlement, but Bank will not be obligated to
institute legal proceedings, file a proof of claim in any insolvency proceeding,
or take any similar action.
(b) Notwithstanding any other provision of this Agreement, Bank shall
consummate all purchases and sales of securities by Customer through the
delivery of securities and payment therefore or vice versa as the case may be
within the United States; provided, however, that the foregoing restriction
shall not apply to:
(i) Purchases and sales on an Established Securities Exchange (as
defined below); and
(ii) Purchases and sales through Bank or Bank's agent in South
Africa of South African Treasury Bills from and to the South
African Treasury, South African Reserve Bank securities, or
central securities depository - eligible securities.
(c) For purposes of this Agreement "Established Securities Exchange"
means a national securities exchange as defined in Section 2(a)(26) of the 1940
Act, The London Stock Exchange, the JSE Securities Exchange South Africa, The
Australian Stock Exchange Limited, The Toronto Stock Exchange, The Tokyo Stock
Exchange and Effektenborsenverein, Zurich Exchange.
(d) Notwithstanding any other provision of this Agreement, Bank will
distribute Customer's assets, or the proceeds thereof, to Customer's creditors
and shareholders, upon service upon Bank of an SEC Order or court directing such
distribution as provided in conditions 15, 19, and 29 of Customer's order from
6
the SEC permitting Customer to register as an investment company under the 1940
Act.
2.6 CONTRACTUAL SETTLEMENT DATE ACCOUNTING.
--------------------------------------
(a) Bank will effect book entries on a "contractual settlement date
accounting" basis as described below with respect to the settlement of trades in
those markets where Bank generally offers contractual settlement date accounting
and will notify Customer of those markets from time to time.
(i) SALES: On the settlement date for a sale, Bank will credit the
Cash Account with the proceeds of the sale and transfer the
relevant Financial Assets to an account at the Bank pending
settlement of the trade where not already delivered.
(ii) PURCHASES: On the settlement date for the purchase (or earlier,
if market practice requires delivery of the purchase price
before the settlement date), Bank will debit the Cash Account
for the settlement amount and credit a separate account at the
Bank. Bank then will post the Securities Account as awaiting
receipt of the expected Financial Assets. Customer will not be
entitled to the Financial Assets that are awaiting receipt
until Bank or a Subcustodian actually receives them.
Bank reserves the right to restrict in good faith the availability of
contractual settlement date accounting for credit or operational reasons.
(b) Bank may (in its absolute discretion) upon oral or written
notification to Customer reverse any debit or credit made pursuant to Section
2.6(a) prior to a transaction's actual settlement, and Customer will be
responsible for any costs or liabilities resulting from such reversal. Customer
acknowledges that the procedures described in this sub-section are of an
administrative nature, and Bank does not undertake to make loans and/or
Financial Assets available to Customer.
2.7 ACTUAL SETTLEMENT DATE ACCOUNTING.
---------------------------------
With respect to any sale or purchase transaction that is not posted to the
Account on the contractual settlement date as referred to in Section 2.6, Bank
will post the transaction on the date on which the cash or Financial Assets
received as consideration for the transaction is actually received by Bank.
2.8 INCOME COLLECTION (AUTOCREDIT(R)).
---------------------------------
(a) Bank will credit the Cash Account with income and redemption proceeds
on Financial Assets in accordance with the times notified by Bank from time to
time on or after the anticipated payment date, net of any taxes that are
withheld by Bank or any third party. Where no time is specified for a particular
market, income and redemption proceeds from Financial Assets will be credited
only after actual receipt and reconciliation. Bank may reverse such credits upon
7
oral or written notification to Customer that Bank believes that the
corresponding payment will not be received by Bank within a reasonable period or
such credit was incorrect.
(b) Bank will make good faith efforts in its discretion to contact
appropriate parties to collect unpaid interest, dividends or redemption
proceeds, but neither Bank nor its Subcustodians will be obliged to file any
formal notice of default, institute legal proceedings, file a proof of claim in
any insolvency proceeding, or take any similar action.
2.9 CERTAIN MINISTERIAL ACTS.
------------------------
Until Bank receives Instructions to the contrary, Bank will:
(a) present all Financial Assets for which Bank has received notice
of a call for redemption or that have otherwise matured, and all
income and interest coupons and other income items that call for
payment upon presentation;
(b) execute in the name of Customer such certificates as may be
required to obtain payment in respect of Financial Assets;
(c) exchange interim or temporary documents of title held in the
Securities Account for definitive documents of title; and
(d) provide information concerning the Accounts to Subcustodians,
Securities Depositories, counterparties, issuers of Financial
Assets, governmental entities, securities exchanges,
self-regulatory entities, and similar entities to the extent
required by Applicable Law or as may be required in the ordinary
course by market practice or otherwise in order to provide the
services contemplated by this Agreement.
2.10 CORPORATE ACTIONS.
-----------------
(a) Bank will notify Customer of any Corporate Action of which
information is either (i) received by it or a Subcustodian to the extent that
Bank's central corporate actions department has actual knowledge of the
Corporate Action in time to notify its customers in a timely manner; or (ii)
published via a formal notice in publications and reporting services routinely
used by Bank for this purpose in time for Bank to notify its customers in a
timely manner. Bank also will use its reasonable efforts to notify Customer of
any class action litigation for which information is actually received by Bank's
central corporate actions department but shall not be liable for any Liabilities
arising out of Bank's failure to identify Customer's interest in any class
action litigation. Bank does not commit, however, to provide information
concerning Corporate Actions or class action litigation relating to Financial
Assets being held at Customer's request in a name not subject to the control of
Bank or its Subcustodian.
8
(b) If an Authorized Person fails to provide Bank with timely
Instructions with respect to any Corporate Action or class action, neither Bank
nor its Subcustodians or their respective nominees will take any action in
relation to that Corporate Action or class action, except as otherwise agreed in
writing by Bank and Customer or as may be set forth by Bank as a default action
in the notification it provides under Section 2.10(a) with respect to that
Corporate Action or class action.
(c) Bank may sell or otherwise dispose of fractional interests in
Financial Assets arising out of a Corporate Action or class action litigation
and, to the extent necessary to protect Customer's interest in that Corporate
Action or class action, credit the Cash Account with the proceeds of the sale or
disposition. If some, but not all, of an outstanding class of Financial Asset is
called for redemption, Bank may allot the amount redeemed among the respective
beneficial holders of such class of Financial Asset in any manner Bank deems to
be fair and equitable.
(d) Notices of Corporate Actions and class actions dispatched to Customer
may have been obtained from sources which Bank does not control and may have
been translated or summarized. Although Bank believes such sources to be
reliable, Bank has no duty to verify the information contained in such notices
nor the faithfulness of any translation or summary and therefore does not
guarantee its accuracy, completeness or timeliness, and shall not be liable to
Customer for any loss that may result from relying on such notice.
2.11 PROXIES.
-------
(a) Subject to and upon the terms of this sub-section, Bank will provide
Customer with information which it receives on matters to be voted upon at
meetings of holders of Financial Assets ("NOTIFICATIONS"), and Bank will act in
accordance with Customer's Instructions in relation to such Notifications ("THE
ACTIVE PROXY VOTING SERVICE"). If information is received by Bank at its proxy
voting department too late to permit timely voting by Customer, Bank's only
obligation will be to provide, so far as reasonably practicable, a Notification
(or summary information concerning a Notification) on an "information only"
basis.
(b) The active proxy voting service is available only in certain markets,
details of which are available from Bank on request. Provision of the active
proxy voting service is conditional upon receipt by Bank of a duly completed
enrollment form as well as additional documentation that may be required for
certain markets.
(c) Bank will act upon Instructions to vote on matters referred to in a
Notification, provided Instructions are received by Bank at its proxy voting
department by the deadline referred to in the relevant Notification. If
Instructions are not received in a timely manner, Bank will not be obligated to
provide further notice to Customer and shall not be obliged to vote. It is
Customer's obligation to monitor the agreed means of providing Notifications to
determine if new Notifications have been received.
(d) Bank reserves the right to provide Notifications or parts thereof in
the language received. Bank will attempt in good faith to provide accurate and
complete Notifications, whether or not translated.
9
(e) Customer acknowledges that Notifications and other information
furnished pursuant to the active proxy voting service ("INFORMATION") are
proprietary to Bank and that Bank owns all intellectual property rights,
including copyrights and patents, embodied therein. Accordingly, Customer will
not make any use of such information except in connection with the active proxy
voting service.
(f) In markets where the active proxy voting service is not available or
where Bank has not received a duly completed enrollment form or other relevant
documentation, Bank will not provide Notifications to Customer but will endeavor
to act upon Instructions to vote on matters before meetings of holders of
Financial Assets where it is reasonably practicable for Bank (or its
Subcustodians or nominees as the case may be) to do so and where such
Instructions are received in time for Bank to take timely action (the "PASSIVE
PROXY VOTING SERVICE").
(g) Customer acknowledges that the provision of proxy voting services
(whether active or passive) may be precluded or restricted under a variety of
circumstances. These circumstances include, but are not limited to:
(i) the Financial Assets being on loan or out for registration,
(ii) the pendency of conversion or another corporate action;
(iii) Financial Assets being held at Customer's request in a name not
subject to the control of Bank or its Subcustodian;
(iv) in a margin or collateral account at Bank or another bank or
broker, or otherwise in a manner which affects voting;
(v) local market regulations or practices, or restrictions by the
issuer;
(vi) Bank may be required to vote all shares held for a particular
issue for all of Bank's customers on a net basis(i.e. a net yes
or no vote based on voting instructions received from all its
customers). Where this is the case, Bank will inform Customer
by means of the Notification.
(h) Notwithstanding the fact that Bank may act in a fiduciary capacity
with respect to Customer under other agreements, in performing active or passive
voting proxy services Bank will be acting solely as the agent of Customer, and
will not exercise any discretion, with regard to such proxy services or vote any
proxy except when directed by an Authorized Person.
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2.12 STATEMENTS AND INFORMATION AVAILABLE ON-LINE.
--------------------------------------------
(a) Bank will send, or make available on-line, to Customer, at times
mutually agreed upon, a formal statement of account in Bank's standard format
for each Account maintained by Customer with Bank, identifying the Financial
Assets and cash held in each Account (each such statement a "STATEMENT OF
ACCOUNT"). Additionally, Bank will send (or make available on-line to) Customer
an advice or notification of any transfers of cash or Financial Assets with
respect to each Account. Bank will not be liable with respect to any matter set
forth in those portions of any Statement of Account or any such advice (or
reasonably implied therefrom) to which Customer has not given Bank a written
exception or objection within sixty (60) days of receipt of the Statement of
Account, provided such matter is not the result of Bank's willful misconduct or
bad faith. References in this Agreement to Statements of Account include
Statements of Account in electronic form.
(b) Prices and other information obtained from third parties which may be
contained in any Statement of Account or other statement sent to Customer have
been obtained from sources Bank believes to be reliable. Bank does not, however,
make any representation as to the accuracy of such information or that the
prices specified necessarily reflect the proceeds that would be received on a
disposal of the relevant Financial Assets.
(c) Customer acknowledges that, except for Statements of Account or as
otherwise expressly agreed by Bank, records and reports available to it on-line
may not be accurate due to mis-postings, delays in updating Account records, and
other causes. Bank will not be liable for any loss or damage arising out of the
inaccuracy of any such records or reports accessed on-line.
2.13 ACCESS TO BANK'S RECORDS.
------------------------
Bank will allow Customer's independent public accountants such reasonable
access to the records of Bank relating to Financial Assets as is required in
connection with their examination of books and records pertaining to Customer's
affairs. Subject to restrictions under Applicable Law, Bank also will obtain an
undertaking to permit Customer's independent public accountants, reasonable
access to the records of any Subcustodian of Securities held in the Securities
Account as may be required in connection with such examination.
2.14 MAINTENANCE OF FINANCIAL ASSETS AT SUBCUSTODIAN LOCATIONS.
---------------------------------------------------------
(a) Unless Instructions require another location acceptable to Bank,
Financial Assets will be held in the country or jurisdiction in which their
principal trading market is located, where such Financial Assets may be
presented for payment, where such Financial Assets were acquired, or where such
Financial Assets are held. Bank reserves the right to refuse to accept delivery
of Financial Assets or cash in countries and jurisdictions other than those
referred to in Schedule 1 to this Agreement, as in effect from time to time.
(b) Bank will not be obliged to follow an Instruction to hold Financial
Assets with, or have them registered or recorded in the name of, any person not
chosen by Bank. However, if Customer does instruct Bank to hold Securities
and/or cash with or register or record Securities in the name of a person not
11
chosen by Bank and Bank agrees to do so, the consequences of doing so are at
Customer's own risk and Bank (i) will not be liable therefor and (ii) may not
provide services under this Agreement with respect to Securities or cash so
held, including, without limitation, services provided under Sections 2.9, 2.10,
2.11 and 7.2.
2.15 TAX RELIEF SERVICES.
-------------------
Bank will provide tax relief services as provided in Section 7.2.
2.16 FOREIGN EXCHANGE TRANSACTIONS.
-----------------------------
To facilitate the administration of Customer's trading and investment
activity, Bank may, but will not be obliged to, enter into spot or forward
foreign exchange contracts with Customer, or an Authorized Person, and may also
provide foreign exchange contracts and facilities through its Affiliates or
Subcustodians. Instructions, including standing Instructions, may be issued with
respect to such contracts, but Bank may establish rules or limitations
concerning any foreign exchange facility made available. In all cases where
Bank, its Affiliates or Subcustodians enter into a master foreign exchange
contract that covers foreign exchange transactions for the Accounts, the terms
and conditions of that foreign exchange contract and, to the extent not
inconsistent, this Agreement, will apply to such transactions.
2.17. COMPLIANCE WITH SEC RULE 17f-5 ("RULE 17f-5").
---------------------------------------------
(a) Pursuant to the SEC Order, Customer's board of directors will serve
as Foreign Custody Manager (as that term is defined in Rule 17f-5(a)(3) as
promulgated under the 1940 Act, including for the purposes of: (i) selecting
Eligible Foreign Custodians (as that term is defined in Rule 17f-5(a)(1), and as
the same may be amended from time to time, or that have otherwise been exempted
pursuant to an SEC exemptive order) to hold foreign Financial Assets and Cash,
(ii) evaluating the contractual arrangements with such Eligible Foreign
Custodians (as set forth in rule 17f-5(c)(2)), and (iii) monitoring such foreign
custody arrangements (as set forth in Rule 17f-5(c)(3)).
Bank is hereby authorized to place and maintain foreign Financial
Assets and cash on behalf of Customer with Eligible Foreign Custodians pursuant
to a written contract deemed appropriate by Customer. Customer shall be solely
responsible to assure that the maintenance of foreign Financial Assets and cash
hereunder complies with the rules, regulations, interpretations and exemptive
orders as promulgated by or under the authority of the SEC.
(b) Bank represents to Customer that it is a U.S. Bank as defined in Rule
17f-5(a)(7). Customer represents to Bank that: (1) the foreign Financial Assets
and cash being placed and maintained in Bank's custody are subject to the 1940
Act and the SEC Order, as the same may be amended from time to time; and (2) its
Board has determined that Customer may maintain foreign Financial Assets and
cash in each country in which Customer's Financial Assets and cash shall be held
hereunder and determined to accept Country Risk.
12
(c) Bank shall provide to Customer such information relating to Country
Risk as is specified in Schedule 3 hereto. Customer hereby acknowledges that:
(i) such information is solely designed to inform Customer of market conditions
and procedures and is not intended as a recommendation to invest or not invest
in particular markets; and (ii) Bank has gathered the information from sources
it considers reliable, but that Bank shall have no responsibility for
inaccuracies or incomplete information.
2.18. COMPLIANCE WITH SEC RULE 17F-7 ("RULE 17F-7").
---------------------------------------------
(a) Bank shall, for consideration by Customer, provide an analysis of the
custody risks associated with maintaining Customer's Foreign Assets with each
Eligible Securities Depository used by Bank as of the date hereof (or, in the
case of an Eligible Securities Depository not used by Bank as of the date
hereof, prior to the initial placement of Customer's foreign Assets at such
Depository) and at which any foreign Assets of Customer are held or are expected
to be held. The foregoing analysis will be provided to Customer at Bank's
Website. In connection with the foregoing, Customer shall notify Bank of any
Eligible Securities Depositories at which it does not choose to have its Foreign
Assets held. Bank shall monitor the custody risks associated with maintaining
Customer's foreign Assets at each such Eligible Securities Depository on a
continuing basis and shall promptly notify Customer or its adviser of any
material changes in such risks.
(b) Bank shall exercise reasonable care, prudence and diligence in
performing the requirements set forth in Section 2.18(a) above.
(c) Based on the information available to it in the exercise of
diligence, Bank shall determine the eligibility under Rule 17f-7 of each
depository before including it on Schedule 2 hereto and shall promptly advise
Customer if any Eligible Securities Depository ceases to be eligible. (Eligible
Securities Depositories used by Bank as of the date hereof are set forth in
Schedule 2 hereto, and as the same may be amended on notice to Customer from
time to time.)
3. INSTRUCTIONS
3.1 ACTING ON INSTRUCTIONS; UNCLEAR INSTRUCTIONS.
--------------------------------------------
(a) Customer authorizes Bank to accept and act upon any Instructions
received by it without inquiry. Customer will indemnify the Bank Indemnitees
against, and hold each of them harmless from, any Liabilities that may be
imposed on, incurred by, or asserted against the Bank Indemnitees as a result of
any action or omission taken in accordance with any Instructions or other
directions upon which Bank is authorized to rely under the terms of this
Agreement.
(b) Unless otherwise expressly provided, all Instructions will continue
in full force and effect until canceled or superseded.
(c) Bank may (in its sole discretion and without affecting any part of
this Section 3.1) seek clarification or confirmation of an Instruction from an
Authorized Person and may decline to act upon an Instruction if it does not
13
receive clarification or confirmation satisfactory to it. Bank will not be
liable for any loss arising from any delay while it seeks such clarification or
confirmation.
(d) In executing or paying a payment order Bank may rely upon the
identifying number (e.g. Fedwire routing number or account) of any party as
instructed in the payment order. Customer assumes full responsibility for any
inconsistency between the name and identifying number of any party in payment
orders issued to Bank in Customer's name.
3.2 CONFIRMATION OF ORAL INSTRUCTIONS/ SECURITY DEVICES.
---------------------------------------------------
Any Instructions delivered to Bank by telephone will promptly thereafter
be confirmed in writing by an Authorized Person. Each confirmation is to be
clearly marked "Confirmation." Bank will not be liable for having followed such
Instructions notwithstanding the failure of an Authorized Person to send such
confirmation in writing or the failure of such confirmation to conform to the
telephone Instructions received. Either party may record any of their telephonic
communications. Customer will comply with any security procedures reasonably
required by Bank from time to time with respect to verification of Instructions.
Customer will be responsible for safeguarding any test keys, identification
codes or other security devices that Bank will make available to Customer or any
Authorized Person.
3.3 INSTRUCTIONS; CONTRARY TO LAW/MARKET PRACTICE.
---------------------------------------------
Bank need not act upon Instructions which it reasonably believes to be
contrary to law, regulation or market practice, but Bank will be under no duty
to investigate whether any Instructions comply with Applicable Law or market
practice.
3.4 CUT-OFF TIMES.
-------------
Bank has established cut-off times for receipt of some categories of
Instruction, which will be made available to Customer. If Bank receives an
Instruction after its established cut-off time, Bank will attempt to act upon
the Instruction on the day requested if Bank deems it practicable to do so or
otherwise as soon as practicable on the next business day.
14
4. FEES, EXPENSES AND OTHER AMOUNTS OWING TO BANK
4.1 FEES AND EXPENSES.
-----------------
Customer will pay Bank for its services hereunder the fees set forth in
Schedule 3 hereto or such other amounts as may be agreed upon in writing from
time to time, together with Bank's reasonable out-of-pocket or incidental
expenses, including, but not limited to, legal fees and tax or related fees
incidental to processing by governmental authorities, issuers, or their agents.
Customer authorizes Bank to deduct amounts owing to it from the Cash Account,
for any such fees or expenses from time to time in arrears. Bank may increase
such fees by not less than thirty days' notice in writing to Customer. Without
prejudice to Bank's other rights, Bank reserves the right to charge interest on
overdue amounts from the due date until actual payment at such rate as Bank may
reasonably determine.
4.2 OVERDRAFTS.
----------
If a debit to any currency in the Cash Account results (or will result) in
a debit balance, then Bank may, in its discretion, (i) advance an amount equal
to the overdraft, (ii) or refuse to settle in whole or in part the transaction
causing such debit balance, or (iii) if any such transaction is posted to the
Securities Account, reverse any such posting. If Bank elects to make such an
advance, the advance will be deemed a loan to Customer, payable on demand,
bearing interest at the applicable rate charged by Bank from time to time, for
such overdrafts, from the date of such advance to the date of payment (both
after as well as before judgment) and otherwise on the terms on which Bank makes
similar overdrafts available from time to time. No prior action or course of
dealing on Bank's part with respect to the settlement of transactions on
Customer's behalf will be asserted by Customer against Bank for Bank's refusal
to make advances to the Cash Account or to settle any transaction for which
Customer does not have sufficient available funds in the applicable currency in
the Account.
4.3 BANK'S RIGHT OVER SECURITIES; SET-OFF.
-------------------------------------
(a) Customer grants Bank a security interest in and a lien on the
Financial Assets held in the Securities Account as security for any and all
amounts which are now or become owing to Bank under any provision of this
Agreement, whether or not matured or contingent ("Indebtedness").
(b) Without prejudice to Bank's rights under Applicable Law, Bank may set
off against any Indebtedness any amount in any currency standing to the credit
of any of Customer's accounts (whether deposit or otherwise) with any Bank
branch or office or with any Affiliate of Bank. For this purpose, Bank 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.
15
5. ADDITIONAL PROVISIONS RELATING TO CUSTOMER
5.1 REPRESENTATIONS OF CUSTOMER AND BANK.
------------------------------------
(a) Customer represents and warrants that (i) it has full authority and
power, and has obtained all necessary authorizations and consents, to deposit
and control the Financial Assets and cash in the Accounts, to use Bank as its
custodian in accordance with the terms of this Agreement, to borrow money or
otherwise incur indebtedness as contemplated by this Agreement, to pledge
Financial Assets as contemplated by Section 4.3, and to enter into foreign
exchange transactions; (ii) assuming execution and delivery of this Agreement by
Bank, this Agreement is Customer's 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 corporate action to authorize the
execution of this Agreement; and (iii) it has not relied on any oral or written
representation made by Bank or any person on its behalf, and acknowledges that
this Agreement sets out to the fullest extent the duties of Bank.
(b) Bank represents and warrants that (i) assuming execution and delivery
of this Agreement by Customer, this Agreement is Bank's legal, valid and binding
obligation, enforceable in accordance with its terms and (ii) it has full power
and authority to enter into and has taken all necessary corporate action to
authorize the execution of this Agreement.
Bank may rely upon the above or the certification of such other facts as may be
required to administer Bank's obligations hereunder. Customer shall indemnify
Bank against all losses, liability, claims or demands arising directly or
indirectly from any such certifications.
5.2 CUSTOMER TO PROVIDE CERTAIN INFORMATION TO BANK.
-----------------------------------------------
Upon request, Customer will promptly provide to Bank such information
about itself and its financial status as Bank may reasonably request, including
Customer's organizational documents and its current audited and unaudited
financial statements.
5.3 CUSTOMER IS LIABLE TO BANK EVEN IF IT IS ACTING FOR ANOTHER PERSON.
------------------------------------------------------------------
If Customer is acting as an agent for a disclosed or undisclosed principal
in respect of any transaction, cash, or Financial Asset, Bank nevertheless will
treat Customer as its principal for all purposes under this Agreement. In this
regard, Customer will be liable to Bank as a principal in respect of any
transactions relating to the Account. The foregoing will not affect any rights
Bank might have against Customer's principal.
6. WHEN BANK IS LIABLE TO CUSTOMER
6.1 STANDARD OF CARE; LIABILITY.
---------------------------
(a) Bank will use reasonable care in performing its obligations under
this Agreement. Bank will not be in violation of this Agreement with respect to
any matter as to which it has satisfied its obligation of reasonable care.
16
(b) Bank will be liable for Customer's direct damages to the extent they
result from Bank's negligence or willful misconduct in performing its duties as
set out in this Agreement and to the extent provided in Section 6.2(a).
Nevertheless, under no circumstances will Bank be liable for any indirect,
incidental, consequential or special damages (including, without limitation,
lost profits) of any form incurred by any person or entity, whether or not
foreseeable and regardless of the type of action in which such a claim may be
brought, with respect to the Accounts, Bank's performance hereunder, or Bank's
role as custodian.
(c) Customer will indemnify the Bank Indemnitees against, and hold them
harmless from, any Liabilities that may be imposed on, incurred by or asserted
against any of the Bank Indemnitees in connection with or arising out of (i)
Bank's performance under this Agreement, provided the Bank Indemnitees have not
acted with negligence or engaged in fraud or willful misconduct in connection
with the Liabilities in question or (ii) any Bank Indemnitee's status as a
holder of record of Customer's Financial Assets. Nevertheless, Customer will not
be obligated to indemnify any Bank Indemnitee under the preceding sentence with
respect to any Liability for which Bank is liable under Section 6.2 of this
Agreement.
(d) Without limiting Subsections 6.1 (a), (b) or (c), Bank will have no
duty or responsibility to: (i) question Instructions or make any suggestions to
Customer or an Authorized Person regarding such Instructions; (ii) supervise or
make recommendations with respect to investments or the retention of Financial
Assets; (iii) advise Customer or an Authorized Person regarding any default in
the payment of principal or income of any security other than as provided in
Section 2.7(b) of this Agreement; (iv) evaluate or report to Customer or an
Authorized Person regarding the financial condition of any broker, agent or
other party to which Bank is instructed to deliver Financial Assets or cash; or
(v) review or reconcile trade confirmations received from brokers (and Customer
or its Authorized Persons issuing Instructions will bear any responsibility to
review such confirmations against Instructions issued to and Statements of
Account issued by Bank).
6.2 LIABILITY FOR SUBCUSTODIANS.
---------------------------
(a) Subject to Section 6.1(b), Bank will be liable for direct losses
incurred by Customer that result from:
(i) the failure by a Subcustodian to use reasonable care in the
provision of custodial services by it in accordance with the
standards prevailing in the relevant market or from the fraud
or willful misconduct of such Subcustodian in the provision of
custodial services by it; or
(ii) the insolvency of any Affiliated Subcustodian.
(b) Subject to Section 6.1(a) and Bank's duty to use reasonable care in
the monitoring of a Subcustodian's financial condition as reflected in its
published financial statements and other publicly available financial
information concerning it customarily reviewed by Bank in its oversight process,
17
Bank will not be responsible for the insolvency of any Subcustodian which is not
a branch or an Affiliated Subcustodian.
(c) Bank reserves the right to add, replace or remove Subcustodians. Bank
will give prompt notice of any such action, which will be advance notice if
practicable. Upon request by Customer, Bank will identify the name, address and
principal place of business of any Subcustodian and the name and address of the
governmental agency or other regulatory authority that supervises or regulates
such Subcustodian.
6.3 LIABILITY OF SECURITIES DEPOSITORIES.
------------------------------------
Bank will not be liable for any act or omission by (or the insolvency of)
any Securities Depository. In the event Customer incurs a loss due to the
negligence, willful misconduct, or insolvency of a Securities Depository, Bank
will make reasonable endeavors, in its discretion, to seek recovery from the
Securities Depository, but Bank will not be obligated to institute legal
proceedings, file a proof claim in any insolvency proceeding, or take any
similar action.
6.4 FORCE MAJEURE.
-------------
Bank will maintain and update from time to time business continuation and
disaster recovery procedures with respect to its global custody business that it
determines from time to time meet reasonable commercial standards. Bank will
have no liability, however, for any damage, loss, expense or liability of any
nature that Customer may suffer or incur, caused by an act of God, fire, flood,
civil or labor disturbance, war, terrorism, act of any governmental authority or
other act or threat of any authority (de jure or de facto), legal constraint,
fraud or forgery, malfunction of equipment or software (except where such
malfunction is primarily attributable to Bank's negligence in maintaining the
equipment or software), failure of or the effect of rules or operations of any
external funds transfer system, inability to obtain or interruption of external
communications facilities, or any cause beyond the reasonable control of Bank
(including without limitation, the non-availability of appropriate foreign
exchange).
6.5 BANK MAY CONSULT WITH COUNSEL.
------------------------------
Bank will be entitled to rely on, and may act upon the advice of
professional advisers in relation to matters of law, regulation or market
practice (which may be the professional advisers of Customer), and will not be
liable to Customer for any action taken or omitted pursuant to such advice.
6.6 BANK PROVIDES DIVERSE FINANCIAL SERVICES AND MAY GENERATE PROFITS AS A
--------------------------------------------------------------------------
RESULT.
------
Customer acknowledges that Bank or its Affiliates may have a material
interest in transactions entered into by Customer with respect to the Account or
that circumstances are such that Bank may have a potential conflict of duty or
interest. For example, Bank or its Affiliates may act as a market maker in the
Financial Assets to which Instructions relate, provide brokerage services to
other customers, act as financial adviser to the issuer of such Financial
Assets, act in the same transaction as agent for more than one customer, have a
material interest in the issue of the Financial Assets; or earn profits from any
18
of these activities. Customer further acknowledges that Bank or its Affiliates
may be in possession of information tending to show that the Instructions
received may not be in the best interests of Customer but that Bank is not under
any duty to disclose any such information.
7. TAXATION
7.1 TAX OBLIGATIONS.
---------------
(a) Customer confirms that Bank is authorized to deduct from any cash
received or credited to the Cash Account any taxes or levies required by any
revenue or governmental authority for whatever reason in respect of Customer's
Accounts.
(b) Customer will provide to Bank such certifications, documentation, and
information as it may require in connection with taxation, and warrants that,
when given, this information is true and correct in every respect, not
misleading in any way, and contains all material information. Customer
undertakes to notify Bank immediately if any information requires updating or
correcting. Bank shall not be liable for any taxes, penalties, interest or
additions to tax, payable or paid that result from (i) the inaccurate completion
of documents by Customer or any third party; (ii) provision to Bank or a third
party of inaccurate or misleading information by Customer or any third party;
(iii) the withholding of material information by Customer or any third party; or
(iv) as a result of any delay by any revenue authority or any other cause beyond
the Bank's control.
(c) If Bank does not receive appropriate certifications, documentation
and information then, as and when appropriate and required, additional tax shall
be deducted from all income received in respect of the Financial Assets issued
(including, but not limited to, United States non-resident alien tax and/or
backup withholding tax.
(d) Customer will be responsible in all events for the timely payment of
all taxes relating to the Financial Assets in the Securities Account.. Customer
will indemnify and hold Bank harmless from and against any and all liabilities,
penalties, interest or additions to tax with respect to or resulting from, any
delay in, or failure by, Bank (i) to pay, withhold or report any U.S. federal,
state or local taxes or foreign taxes imposed on, or (ii) to report interest,
dividend or other income paid or credited to the Cash Account, regardless of the
reason for such delay or failure, provided, however, that Customer will not be
liable to Bank for any penalty or additions to tax due solely as a result of
Bank's negligent acts or omissions with respect to paying or withholding tax or
reporting interest, dividend or other income paid or credited to the Cash
Account.
7.2 TAX RELIEF SERVICES.
-------------------
(a) Subject to the provisions of this Section, Bank will apply for a
reduction of withholding tax and any refund of any tax paid or tax credits in
respect of income payments on Financial Assets credited to the Securities
Account that Bank believes may be available. To defray expenses pertaining to
nominal tax claims, Bank may from time-to-time set minimum thresholds as to a de
19
minimus value of tax reclaims or reduction of withholding which it will pursue
in respect of income payments under this section.
(b) The provision of a tax relief service by Bank is conditional upon
Bank receiving from Customer (i) a declaration of its identity and place of
residence and (ii) certain other documentation (pro forma copies of which are
available from Bank), prior to the receipt of Financial assets in the Account or
the payment of income.
(c) Bank will perform tax relief services only with respect to taxation
levied by the revenue authorities of the countries advised to Customer from time
to time and Bank may, by notification in writing, in its absolute discretion,
supplement or amend the countries in which the tax relief services are offered.
Other than as expressly provided in this Section 7.2 Bank will have no
responsibility with regard to Customer's tax position or status in any
jurisdiction.
(d) Customer confirms that Bank is authorized to disclose any information
requested by any revenue authority or any governmental entity in relation to the
processing of any tax relief claim.
8. TERMINATION
Either party may terminate this Agreement on sixty (60) days' written
notice to the other party. If Customer gives notice of termination, it must
provide full details of the persons to whom Bank must deliver Financial Assets
and cash. If Bank gives notice of termination, then Customer must, within sixty
days, notify Bank of details of its new custodian, failing which Bank may elect
(at any time after the sixty day notice period) either to retain the Financial
Assets and cash until such details are given, continuing to charge fees due (in
which case Bank's sole obligation will be for the safekeeping of the Financial
Assets and cash), or deliver the Financial Assets and cash to Customer. Bank
will in any event be entitled to deduct any amounts owing to it prior to
delivery of the Financial Assets and cash (and, accordingly, Bank will be
entitled to sell Financial Assets and apply the sale proceeds in satisfaction of
amounts owing to it). Customer will reimburse Bank promptly for all
out-of-pocket expenses it incurs in delivering Financial Assets upon
termination. Termination will not affect any of the liabilities either party
owes to the other arising under this Agreement prior to such termination.
9. MISCELLANEOUS
9.1 NOTICES.
-------
Notices (other than Instructions) will 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 will not be deemed to be given unless it has been
received.
20
9.2 SUCCESSORS AND ASSIGNS.
----------------------
This Agreement will 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 will not be unreasonably withheld.
9.3 INTERPRETATION.
--------------
Headings are for convenience only and are not intended to affect
interpretation. References to sections are to sections of this Agreement and
references to sub-sections and paragraphs are to sub-sections of the sections
and paragraphs of the sub-sections in which they appear.
9.4 ENTIRE AGREEMENT.
----------------
(a) The following Rider(s) are incorporated into this Agreement:
___ Cash Trade Execution;
___ Cash Sweep;
___ Accounting Services;
___ Mutual Fund.
(b) This Agreement (including the Schedules, Exhibits, and Riders)
together with the Letter Agreement between Bank and Customer dated _____, 2004,
sets out the entire Agreement between the parties in connection with the subject
matter, and this Agreement supersedes any other agreement, statement, or
representation relating to custody, whether oral or written. Amendments must be
in writing and signed by both parties.
9.5 INSURANCE.
---------
Bank will not be required to maintain any insurance coverage for the
benefit of Customer.
9.6 GOVERNING LAW AND JURISDICTION.
------------------------------
This Agreement will be construed, regulated, and administered under the
laws of the United States or State of New York, as applicable, without regard to
New York's principles regarding conflict of laws. 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
21
fullest extent permitted by applicable law, any right to a trial by jury with
respect to any such lawsuit or judicial proceeding arising or relating to this
Agreement or the transactions contemplated hereby. To the extent that in any
jurisdiction Customer may now or hereafter be entitled to claim, for itself or
its assets, immunity from suit, execution, attachment (before or after judgment)
or other legal process, Customer shall not claim, and it hereby irrevocably
waives, such immunity.
9.7 SEVERABILITY; WAIVER; AND SURVIVAL.
----------------------------------
(a) If one or more provisions of this Agreement are held invalid, illegal
or unenforceable in any respect on the basis of any particular circumstances or
in any jurisdiction, the validity, legality and enforceability of such provision
or provisions under other circumstances or in other jurisdictions and of the
remaining provisions will not in any way be affected or impaired.
(b) Except as otherwise provided herein, no failure or delay on the part
of either party in exercising any power or right hereunder operates as a waiver,
nor does any single or partial exercise of any power or right preclude any other
or further exercise, or the exercise of any other power or right. No waiver by a
party of any provision of this Agreement, or waiver of any breach or default, is
effective unless it is in writing and signed by the party against whom the
waiver is to be enforced.
(c) Bank's rights, protections, and remedies under this Agreement shall
survive its termination.
9.8 COUNTERPARTS.
------------
This Agreement may be executed in several counterparts each of which will
be deemed to be an original and together will constitute one and the same
agreement.
ASA (BERMUDA) LIMITED
By:______________________________________
Title:
Date:
JPMORGAN CHASE BANK
By:______________________________________
Title:
Date:
22
SCHEDULE 0
Xxx Xxxxxxxx Xxxx xx Xxxxx Xxxxxx Limited
23
SCHEDULE 2
The Depository Trust Company
Central Securities Depository in South Africa
24
SCHEDULE 3
Information Regarding Country Risk
----------------------------------
1. To aid Customer in its determinations regarding Country Risk, Bank
shall furnish annually and upon the initial placing of Financial Assets and cash
into a country the following information (check items applicable):
A. Opinions of local counsel concerning:
___ i. Whether applicable foreign law would restrict the access afforded
Customer's independent public accountants to books and records kept
by an eligible foreign custodian located in that country.
___ ii. Whether applicable foreign law would restrict Customer's ability to
recover its Financial Assets and cash in the event of the bankruptcy
of an Eligible Foreign Custodian located in that country.
___ iii. Whether applicable foreign law would restrict Customer's ability to
recover Financial Assets that are lost while under the control of an
Eligible Foreign Custodian located in the country.
B. Written information concerning:
___ i. The foreseeability of expropriation, nationalization, freezes, or
confiscation of Customer's Financial Assets.
___ ii. Whether difficulties in converting Customer's cash and cash
equivalents to U.S. dollars are reasonably foreseeable.
C. A market report with respect to the following topics:
(i) securities regulatory environment, (ii) foreign ownership
restrictions, (iii) foreign exchange, (iv) securities settlement and
registration, (v) taxation, and (vi) depositories (including
depository evaluation), if any.
2. To aid Customer in monitoring Country Risk, Bank shall furnish board
the following additional information:
Market flashes, including with respect to changes in the information in
market reports.
25
