[INST/FIN]
DOMESTIC CUSTODY AGREEMENT
To: THE CHASE MANHATTAN BANK
Institutional Client Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We hereby request you to open and to maintain a separate Custody
Account in the name of EQ Advisors Trust (the "Trust"), a company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), on
behalf of each of the Trust's Portfolios designated in Appendix A. We further
request that you hold therein as our custodian, upon the following terms and
conditions all stocks, bonds, rights, warrants and other negotiable and
non-negotiable paper issued in certificated or book-entry form and commonly
treated or dealt with on securities exchanges or securities markets as shall be
received by or on instructions and acceptable to you for the Custody Account
(hereinafter referred to as "securities"). As used herein, the term Custody
Account shall include all such Custody Accounts opened pursuant to this
Domestic Custody Agreement (the "Agreement").
Securities held by you for the Custody Account shall be segregated at
all times from your proprietary assets, and on your records segregated from the
assets of any other account holder for which you serve as custodian or in any
other capacity.
1. TRANSACTIONS. Unless you receive contrary written instructions from
us, and subject to the provisions of this Agreement you are authorized and
instructed:
(a) to collect on a timely basis and/or receive all income, dividends
and other payments payable on the securities to which the Portfolios are
entitled either by law or pursuant to custom in the securities business,
and (except as hereinafter set forth in the section entitled
"Miscellaneous") to credit such payments to the demand deposit cash account
of the appropriate Portfolio as designated by us to receive all sums
collected in respect of transactions to the Custody Account (each such
account a "Cash Account");
(b) to credit all proceeds received from sales and redemptions of
securities to the Cash Account:
(c) to debit the Cash Account for the price (instructed by us) to
acquire securities for the Custody Account;
(d) to present obligations (including coupons) for payment upon
maturity, when called for redemption and when income payments are due;
(e) to exchange securities for other securities where the exchange is
purely ministerial as, for example, the exchange of securities in temporary
form for securities in definitive form or the mandatory exchange of
certificates;
(f) to sell fractional interests resulting from a stock split or a
stock dividend and to credit the Cash Account with the proceeds thereof;
(g) to execute in our name, whenever you deem it appropriate, such
ownership and other certificates as may be required to obtain payments with
respect to, or to effect the sale, transfer or other disposition of,
securities in the Custody Account and to guarantee as our signature the
signature so affixed;
(h) to receive and hold in the Custody Account securities which have
transfer limitations imposed upon them by the Securities Act of 1933, as
amended; and
(i) to convert moneys received with respect to securities of foreign
issue into United States dollars whenever it is practical to do so through
customary banking channels. In effecting such conversion you may use any
method or agency available to you, including the facilities of your own
divisions, subsidiaries or affiliates. To the extent you act in good faith
in accordance with accepted industry practices for banks providing similar
services, you shall incur no liability on account of any loss suffered or
expense incurred as a result of such conversion, including, without
limitation, losses arising from fluctuations in exchange rates affecting
any such conversion.
2. INSTRUCTIONS. You are authorized to rely and act upon all written
instructions given or purported to be given by one or more officers, employees
or agents of ours (i) authorized by or in accordance with a corporate
resolution of ours delivered to you or (ii) described as authorized in a
certificate delivered to you by our Secretary or an Assistant Secretary or
similar officer of ours (each such officer, employee or agent or combination of
officers, employees and agents authorized pursuant to clause (i) or described
pursuant to clause (ii) of this paragraph is hereinafter referred to as an
"Authorized Officer"). (The term "instructions" includes, without limitation,
instructions to sell, assign, transfer, deliver, purchase or receive for the
Custody Account, any and all stocks, bonds and other securities or to transfer
funds in the Cash Account. Instructions must set forth the specific transaction
or type of transaction involved, including a statement of the purpose for which
the action is requested, and may be a blanket instruction authorizing specific
transactions of a routine nature or occurring repeatedly. We shall be solely
responsible to assure that instructions are in accord with any limitations or
restrictions applicable to us by law or as may be set forth in our prospectus.)
You may also rely and act upon instructions when bearing or purporting to bear
the facsimile signature of any of the individuals designated by an Authorized
Officer if such facsimile signature or signatures resemble(s) the facsimile
specimen or specimens from time to time furnished to you by any of such
Authorized
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Officers, our Secretary or an Assistant Secretary or similar officer of ours
in writing, addressed to you, indicating that the signatures are those
belonging to persons authorized to give instructions with respect to the
Portfolios. In addition, you may rely and act upon instructions received by
telephone, telex, TWX, facsimile transmission, bank wire or other teleprocess
or electronic instruction or trade information system acceptable to both you
and us which you believe in good faith to have been given by an Authorized
Officer or which are transmitted with proper testing or authentication
pursuant to terms and conditions agreed by both of us. You may also rely and
act upon instructions transmitted electronically through your TITAN Data Entry
System, or any similar electronic instruction system acceptable to both of us.
You shall incur no liability to us or otherwise as a result of any act or
omission by you in accordance with instructions on which you are authorized to
rely pursuant to the provisions of this paragraph. Any instructions delivered
to you by telephone shall promptly thereafter be confirmed in writing by an
Authorized Officer, but you shall incur no liability for our failure to send
such confirmation in writing, the failure of any such written confirmation to
conform to the telephone instructions which you received, the failure of any
such written confirmation to be signed or properly signed, or your failure to
produce such confirmation at any subsequent time. You shall incur no liability
for refraining from acting upon any instructions which for any reason you, in
good faith, are unable to verify to your own satisfaction. You shall notify us
promptly of any discrepancies between oral and written instructions, the lack
of a valid signature, and with respect to instructions you choose not to
follow. With respect to instructions received hereunder to transfer funds from
the Cash Account to any other account or party, we agree to implement any
callback or other authentication method or procedure or security device to
which we together agree from time to time. Unless otherwise expressly
provided, blanket instructions authorizing specific transactions of a routine
nature or occurring repeatedly shall continue in full force and effect until
canceled or superseded by subsequent authorizations or instructions received
by your safekeeping account administrator with reasonable opportunity to act
thereon. Your authorization to rely and act upon instructions pursuant to this
paragraph shall be in addition to, and shall not limit, any other
authorization which we may give you regarding our accounts with you.
We agree that, if you require test arrangements, authentication
methods or procedures or other security devices to be used with respect to
instructions which we may give hereunder, thereafter instructions given by us
shall be given and processed in accordance with terms and conditions for the
use of such arrangements, methods or procedures or devices as you and we
together put into effect and modify from time to time. We shall take reasonable
steps to safeguard any test keys, identification codes or other security
devices which you make available to us and agree that we shall be responsible
for any loss, liability or damage incurred by you or by us as a result of your
acting in accordance with instructions from any unauthorized person using the
proper security device; except that we will not be responsible for your actions
where you knew that the instructions were given by an unauthorized person and
you failed to take any action. Both of us may electronically record any
instructions given by telephone, and any other telephone discussions with
respect to the Custody Account or transactions pursuant to this Agreement.
If you are instructed by us to purchase or sell securities for the
Custody Account you may enter purchase and sale orders and confirmations, and
perform any other acts incidental
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or necessary to the performance thereof with brokers or dealers or similar
agents selected by you, including any broker or dealer or similar agent
affiliated with you, for our account, and in accordance with accepted industry
practices in the relevant market.
Except as may be provided otherwise herein or prohibited by law or
regulatory interpretation applicable to you, you are authorized to execute our
instructions and take other actions pursuant to this Agreement in accordance
with your customary processing practices for customers similar to us and, in
accordance with such practices, you may retain agents, including subsidiaries
or affiliates of yours, to perform certain of such functions.
In acting upon instructions to deliver securities against payment, you
are authorized, to the extent you deem the practice under the circumstances to
be in accordance with customary securities processing practices, to deliver
such securities to the purchaser thereof or dealer therefor (including to an
agent for any such purchaser or dealer) against a receipt, with the expectation
of collecting payment from the purchaser, dealer or agent to whom the
securities were so delivered before the close of business on the same day.
3. REGISTRATION. Unless you receive contrary instructions from us, you
are authorized to keep securities in your own vaults or in book entry form
registered in the name of the Portfolio or in the name of one or more of your
nominees assigned to the Portfolio, or in the name of any agent or subcustodian
appointed pursuant to the terms of this Agreement. Where securities are
eligible for deposit in a Depository (hereinafter defined), such as The
Depository Trust Company, the Federal Reserve Bank of New York or Participants
Trust Company, you may use any such Depository and permit the registration of
registered securities in the name of its nominee or nominees, and we agree to
hold you and the nominees harmless from any liability as holders of record. We
shall accept the return or delivery of securities of the same class and
denomination as those deposited with you by us or otherwise received by you for
the Custody Account, and you need not retain the particular certificates so
deposited or received.
If any of our securities registered in your name or the name of your
nominee or held in a Depository and registered in the name of the Depository's
nominee are called for partial redemption by the issuer of such securities, you
are authorized to allot the called portion to the respective beneficial holders
of the securities in any manner deemed to be fair and equitable in your sole
discretion.
4. SEGREGATED ACCOUNT. You will, upon receipt of instructions from us,
establish and maintain a segregated account or accounts on your records for and
on behalf of each Portfolio, into which may be credited cash and/or securities:
(a) in accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer (registered under the Securities
Exchange Act of 1934 ("Exchange Act") and a member of the National
Association of Securities Dealers, Inc. ("NASD"), or any futures commission
merchant registered under the Commodity Exchange Act, relating to
compliance with the rules of the Options Clearing Corporation
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and of any registered national securities exchange (or the Commodity
Futures Trading Commission or any registered contract market), or of any
similar organization, regarding escrow or other arrangements in connection
with the transactions by a Portfolio;
(b) for purposes of segregating cash or government securities in
connection with options purchased or sold or written by a Portfolio;
(c) for the purpose of compliance by the Trust with the procedures
required by 1940 Act Release No. 10,666, or any subsequent release, rule or
policy of the Securities and Exchange Commission ("SEC") relating to the
maintenance of segregated accounts by registered investment companies; and
(d) for other proper corporate purposes, but only in the case of this
clause upon receipt of, in addition to instructions as defined below, a
certified copy of a resolution of the Board of Trustees setting forth the
purpose of such segregated account and declaring such purposes to be proper
corporate purposes.
5. STATEMENTS. You shall notify us of each securities transaction
effected for the Custody Account and of income on and redemptions of the
securities in the Custody Account, as well as furnish us a listing of such
securities, at such times upon which you and we mutually agree. Periodic
statements shall be rendered to us as we may reasonably require, but not less
frequently than monthly. You shall at all times maintain proper books and
records that shall identify the securities as belonging to the appropriate
Portfolio. Your books and records relating to the Custody Account shall be
available for inspection upon reasonable notice to you during your regular
business hours by duly authorized officers, employees, or agents of ours, or by
legally authorized regulatory officials who are then in the process of
reviewing our financial affairs upon proof to you of such official status. You
agree to use reasonable efforts to maintain records sufficient to enable us to
determine and verify information concerning the custodied securities. You agree
to furnish, upon our request or the request of any regulatory authority of any
jurisdiction in which we are authorized to do business, a verification
certificate in sufficient detail to permit adequate identification of the
securities belonging to each Portfolio and held by you under the terms of this
Agreement. Such certificate shall be signed by a responsible official of yours
and furnished to the requestor, with a copy to us if the requestor is a
regulatory authority.
Unless we shall send to you a written exception or objection to any
statement of account within 60 days of our receipt of such statement from you,
we shall be deemed to have approved such statement. In such event, or where we
have otherwise approved such statement, you shall, to the extent permitted by
law, be released, relieved and discharged with respect to all matters set forth
in such statement or reasonably implied therefrom; provided, however, that any
matter that could not reasonably have been known by us or our agents during the
60-day period shall survive past that time limit, and we shall have available
to us all legal remedies with respect to any matter set forth in or reasonably
implied from the statement.
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6. CORPORATE ACTIONS. You shall send us such proxies (signed in blank,
if issued in your name or the name of your nominee or a nominee of a
Depository) and communications with respect to securities in the Custody
Account as call for voting or relate to legal proceedings within a reasonable
time after sufficient copies are received by you for forwarding to customers.
In addition, you shall follow coupon payments, redemptions, exchanges or
similar matters with respect to securities in the Custody Account and advise us
of rights issued, tender offers or any other discretionary rights with respect
to such securities, in each case, of which you receive notice at your central
corporate actions department from the issuer or from the Depository in which
such securities are held or notice published in publications and reported in
reporting services routinely used by you for this purpose. If we desire to take
action with respect to any tender offer, exchange offer or any other similar
transaction, we will notify you at least three (3) business days prior to the
time such action must be taken under the terms of the transaction, and it will
be your responsibility to transmit the notice to the appropriate parties on a
timely basis. If we do not notify you of our desired action within the three
(3) business day period, you will use your reasonable best efforts to transmit
on a timely basis our notice to the appropriate person, but you will not be
liable for any failure to do so if such transmission was not practicable.
7. CUSTODIAN RESPONSIBILITY. Except as provided in the next following
paragraph, you shall be obligated to indemnify us for any loss of securities
credited to the Custody Account resulting from (i) the negligence or willful
misconduct of you or your officers, employees or agents retained by you to hold
such securities or (ii) the burglary, robbery, hold-up, theft or mysterious
disappearance, including loss by damage or destruction. In the event of a loss
of securities in the Custody Account for which you are required to indemnify us
pursuant to the immediately preceding sentence, at your option, you shall
promptly replace such securities (by among other means posting appropriate
security or bond with the issuer(s) of such securities and obtaining their
reissue) or the value thereof (determined based upon the market value of the
securities which are the subject of such loss as of the date of the discovery
of such loss) and the value of any loss of rights or privileges resulting from
the loss of such securities. The foregoing indemnity shall be your exclusive
liability to us for your loss of securities from the Custody Account. You shall
be responsible for exercising good faith and reasonable care as a professional
custodian for securities in carrying out your duties and obligations under this
Agreement. In respect of all your other duties and obligations pursuant to the
terms of this Agreement, you shall be liable to us only to the extent of our
general damages suffered or incurred as a result of any act or omission of you
or your officers, employees or agents which constitutes negligence or willful
misconduct. General damages shall mean only those damages as directly and
necessarily result from such act or omission without reference to any special
conditions or circumstances of ours or of any transaction, whether or not you
have been advised of any such special conditions or circumstances. Anything in
this Agreement to the contrary notwithstanding, in no event shall you be liable
to us under this Agreement for special, indirect or consequential loss or
damage of any kind whatsoever, whether or not you are advised as to the
possibility of such loss or damage and regardless of the form of action in
which any such loss or damage may be claimed.
It is our understanding that you maintain Bankers' Blanket Bond
insurance which includes fidelity insurance for your employees and loss of
property through any dishonest act of
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your employees, and loss through robbery, burglary, theft or mysterious
disappearance while on your premises or while in transit in the custody of
your employees. We understand it is your present intention to maintain such
insurance in respect of your activities as a securities custodian. Upon our
request, you shall have your Insurance Department provide to us a description
of the fidelity and other insurance coverage you maintain for your benefit in
respect of the assets you hold in custody for others.
You shall not be liable for the acts or omissions of (or the
bankruptcy or insolvency of) any Depository. If, however, as a result of any
act or omission of, or the bankruptcy or insolvency of, any Depository we
suffer any loss or liability, you will take such steps with respect thereto in
order to effect a recovery as you shall reasonably deem appropriate under the
circumstances (including the bringing and settling of legal proceedings),
provided that unless you shall be liable as set forth in the immediately
preceding paragraph of this Agreement, for such loss or liability by virtue of
the negligence or misconduct of you or your officers, employees or agents, the
amount of any cost or expense in effecting, or attempting to effect, such
recovery shall be for our account, and you shall have the right to charge such
cost or expense to the Cash Account. We further agree to be bound by the
Depository rules and procedures applicable to you as a participant in respect
of any securities held by you in your account with such Depository.
"Depository" shall mean a federal reserve bank and any "clearing corporation"
as defined under Article 8 of the New York Uniform Commercial Code, as amended
from time to time.
All collection and receipt of funds or securities and all payment and
delivery of funds or securities under this Agreement shall be made by you as
our agent, at our risk with respect to our actions or omissions and those of
persons other than you, including, without limitation, the risk associated with
the securities processing practice of delivering securities against a receipt
and the risk that the counterparty in any transaction into which we enter will
not transfer funds or securities or otherwise perform in accordance with our
expectation of its obligations thereunder (including, without limitation,
where, as a result of such non-performance, a Depository reverses, or requires
repayment of, any credit given in connection with the transfer of securities).
You will perform all your duties in a timely manner. What constitutes
timeliness in connection with a particular action will be determined by the
standards of the industry in the relevant market as they apply to the specific
type of transaction in question and taking into account relevant facts and
circumstances.
In no event shall you be responsible or liable for any loss due to
forces beyond your control, including, but not limited to, acts of God, flood,
fire, nuclear fusion, fission or radiation, war (declared or undeclared),
terrorism, insurrection, revolution, riot, strikes or work stoppages for any
reason, embargo, closure or disruption of any market, government action,
including any laws, ordinances, regulations or the like which restrict or
prohibit the providing of the services contemplated by this Agreement,
inability to obtain equipment or communications facilities, or the error in
transmission of information caused by any machines or systems or the
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failure of equipment or interruption of communications facilities, and other
causes whether or not of the same class or kind as specifically named above.
In the event that you are unable substantially to perform for any of the
reasons described in the immediately preceding sentence, you shall so notify
us as soon as reasonably practicable.
You shall be responsible for only those duties expressly stated in
this Agreement or expressly contained in instructions to perform the services
described herein given to you pursuant to the provisions of this Agreement and
accepted by you and. without limiting the foregoing, you shall have no duty or
responsibility:
(a) to supervise the investment of, or make recommendations with
respect to the purchase, retention or sale of, securities relating to the
Custody Account or to maintain any insurance on securities in the Custody
Account for our benefit;
(b) with regard to any security in the Custody Account as to which a
default in the payment of principal or interest has occurred, to give
notice of default, make demand for payment or take any other action with
respect to such default;
(c) except as otherwise specifically provided in this section under
the heading "Custodian Responsibility", for any act or omission, or for the
solvency or insolvency, or notice to us of the solvency or insolvency, of
any broker or agent which is selected by you with reasonable care or by us
or any other person to effect any transaction for the Custody Account or to
perform any service under this Agreement;
(d) to evaluate, or report to us regarding, the financial condition of
any person, firm or corporation to which you deliver securities or funds
pursuant to this Agreement:
(e) for any loss occasioned by delay in the actual receipt of notice
by you of any payment, redemption or other transaction in respect to which
you are authorized to take some action pursuant to this agreement; or
(f) for any errors or omissions made by any securities pricing service
used by you to value securities credited to the Custody Account as part of
any service subscribed to by us from you.
8. SETTLEMENTS. We agree with you that all credits of securities and
proceeds by you to the Custody Account and the Cash Account, respectively, on
the settlement or payable date shall be provisional when made and you shall be
entitled to reverse any such credits subject to actual receipt or collection of
immediately available funds.
We shall have sufficient immediately available funds each day in the
Cash Account to pay for the settlement of all securities delivered against
payment to you and credited to the Custody Account. Should we fail to have
sufficient immediately available funds in the Cash Account to settle these
deliveries of securities pursuant to the preceding sentence (a "Deficit"),
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you, in your sole discretion, may elect (i) to reject the settlement of any or
all of the securities delivered to you that day to the Custody Account, (ii)
to settle the deliveries on our behalf and debit the Cash Account (A) for the
amount of such Deficit and (B) for the amount of the funding or other cost or
expense incurred or sustained by you for our failure to have sufficient
immediately available funds in the Cash Account by the applicable settlement
deadline for you, or (iii) to reverse the posting of the securities credited
to the Custody Account.
You shall have the right to reverse any erroneous or provisional
credit entries to the Cash Account retroactively to the date upon which the
correct entry, or no entry, should have been made.
The foregoing rights are in addition to and not in limitation of any
other rights or remedies available to you under this Agreement or otherwise.
Any advances made by you to us in connection with the purchase, sale,
redemption, transfer or other designation of securities or in connection with
disbursements of funds to any party, which create or result in an overdraft in
the Cash Account shall be payable on demand, and bear interest on the amount of
the advance each day that the advance remains unpaid at your prime rate in
effect as announced by you from time to time, plus the cost to you of any
required reserves. We shall also bear the cost of any Federal Reserve Bank
daylight overdraft charge incurred by you and allocated to transactions
effected for the Custody Account or the Cash Account.
No prior action or course of dealing on your part with respect to the
settlement of securities transactions on our behalf shall be used by or give
rise to any claim or action by us against you for your refusal to pay or settle
for a securities transaction we have not timely funded as required herein.
9. RESPONSIBLE AS PRINCIPAL. We agree that we shall be responsible to
you as a principal for all of our obligations to you arising under or in
connection with this Agreement, notwithstanding that we may be acting on behalf
of other persons, and we warrant our authority to deposit in the Custody
Account and Cash Account, respectively, any securities and funds which you or
your agents receive therefor and to give instructions relative thereto. We
further agree that you shall not be subject to, nor shall your rights and
obligations with respect to this Agreement and the Custody Account or the Cash
Account be affected by, any agreement between us and any such person.
10. CREDITING AND DEBITING PROCEDURES. With respect to all
transactions for the Custody Account and the Cash Account, including, without
limitation, dividend and interest payments and sales and redemptions of
securities, availability of funds credited to the Custody Account and Cash
Account shall be based on the type of funds used in the trade settlement or
payment, including, but not limited to, same day availability for federal or
same day funds and next business day availability for clearing house or next
day funds. Furthermore, with respect to all purchases and sales of securities
for the Custody Account, the proceeds from the sale of securities shall be
credited to the Cash Account on the date proceeds are received by you and the
cost of securities purchased shall be debited to the Cash Account on the date
securities are
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received by you, unless we request your contractual settlement service for the
Custody Account in which case the following provisions shall apply with
respect to the delivery and receipt of securities for the Custody Account for
those securities and transactions as to which you customarily offer this
service.
(a) When we instruct you to deliver or receive securities, on the
contractual settlement date you shall credit the Cash Account with the expected
proceeds of the transaction and debit the Custody Account for the securities
which we have instructed you to deliver, in the case of deliveries, and debit
the Cash Account for the cost of the securities which we have instructed you to
receive and credit the Custody Account with such securities, in the case of
receives. These credits and debits are provisional accounting entries which you
shall reverse on our instructions and which you may reverse, even in the
absence of instructions from us, if the transaction with respect to which they
were made fails to settle within a reasonable period, determined by you in your
discretion, after the contractual settlement date, but only upon prior or
simultaneous notice to us. If you deliver securities which are returned by the
recipient thereof, you may reverse such credits and debits at any time. You
have no obligation to use this crediting and debiting procedure with respect to
a delivery of securities if we do not have actually in our account sufficient
securities to make the delivery.
(b) As with other transactions processed by you, your responsibility
with respect to transactions for which you use this crediting and debiting
procedure shall be governed by the provisions of this Custody Agreement,
including the section headed "Custodian Responsibility". We agree that your
using this procedure is not an assurance by you that the transaction will
actually settle on the contractual settlement date and does not impose any
additional responsibility on you with respect to the transaction. Without
limiting your right to reverse credits and debits described above, the account
statements which you furnish to us shall reflect transactions as to which you
use this procedure as if they had actually settled on the contractual
settlement date, unless prior to the date to which the statement relates, you
have reversed such credits and debits.
(c) We agree that you may terminate this contractual settlement
service to us at any time and for any reason.
With respect to securities or transactions as to which you do not
customarily offer this service, you shall (i) in the case of deliveries of
securities, credit the proceeds of the transaction to the Cash Account on the
date they are received by you and debit the securities from the Custody Account
on the date they are delivered by you, and (ii) in the case of securities
received, debit the Cash Account for the cost of such securities and credit the
Custody Account with such securities on the date the securities are received by
you.
11. SWEEP OF CASH BALANCES. When directed by us, you are authorized to
arrange for the investment of cash in the Cash Account in mutual funds
(including, without limitation, the VISTA Money Market Funds and any other
mutual fund with respect to which you or an affiliate or subsidiary of yours
serves as an investment adviser, administrator, shareholder servicing agent,
and/or custodian or subcustodian) or money market accounts (including, without
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limitation, accounts of yours or an affiliate or subsidiary of yours)
which you make available for such purposes and which we shall select through
instructions to you. Further, in this regard and in the absence of
prohibitions or contrary instructions, you are authorized to arrange for the
redemption of such mutual fund shares or for the withdrawal of amounts from
such money market accounts as may be necessary to avoid any potential
overdraft hereunder that you perceive based upon the information available to
you at the time of such redemption or withdrawal.
12. OTHER ACCOUNTS. From time to time we may instruct you to open and
maintain additional Custody Accounts for us. Unless we and you otherwise
expressly agree, such accounts will be governed by the provisions of this
Agreement.
13. FEES, INDEMNIFICATION. We agree to pay you compensation for your
services pursuant to this Agreement at the fees that are mutually agreed to
from time to time. We also agree to hold you and your officers, employees and
agents harmless from, and to indemnify and reimburse you and them for, all
claims, liabilities, losses, damages and expenses (including out-of-pocket and
incidental expenses and legal fees) incurred by you or them in connection with
or relating to the Custody Account or your acting under this Agreement,
provided that you or they, as the case may be, have not acted with negligence
or willful misconduct with respect to the events resulting in such claims,
liabilities, losses, damages or expenses.
14. SECURITY INTEREST. To the extent you have advanced funds on our
behalf in connection with the settlement of purchases and sales of securities
for the Custody Account you shall have a security interest in the securities
which are the subject of such purchases and sales until we shall have repaid
the amount of such advance to you, and your security interest in such
securities shall be released upon our repayment of such advance to you.
Except as otherwise provided in this Agreement, the securities and
other assets held by you for a Portfolio will be subject to no lien or charge
of any kind in your favor or in the favor of any person claiming through you,
but nothing in this Agreement will be deemed to deprive you of your right to
invoke any and all remedies available at law or equity to called amounts due to
you under this Agreement. Neither you nor your agents have any power or
authority to assign, hypothecate, pledge or otherwise dispose of any securities
held by you for a Portfolio except at our direction duly given or provided in
this Agreement, and only for the account of the Portfolio.
15. TAXES. Unless we have already done so, we shall deliver promptly
to you with respect to each Custody Account established under this Agreement,
two duly completed and executed copies of United States Internal Revenue
Service form Form W-9 as we are a U.S. citizen or resident person. We agree to
provide duly executed and completed updates of such form after the occurrence
of an event requiring a change in the form previously delivered by us to you.
We shall be responsible for all taxes relating to the property held in the
Custody Account.
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16. TERMINATION. Either party may terminate this Agreement at any time
upon thirty days written notice. Our obligations pursuant to the paragraphs
under the headings "Registration", "Settlements" and "Fees and Indemnification"
shall survive the termination of this Agreement, to the extent the survival of
those provisions does not violate any applicable law.
17. NOTICES. Notices with respect to termination, specification of
Authorized Officers and terms and conditions for instructions required
hereunder shall be in writing, and shall be deemed to have been duly given if
delivered personally, by courier service or by mail, postage prepaid, to the
following addresses (or to such other address as either party hereto may from
time to time designate by notice duly given in accordance with this paragraph):
To us at: EQ Advisors Trust
c/o Equitable Life Assurance Society
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, President
Copies to: Xxxx Xxxxx, Counsel
(to same address as above)
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx & Zavis
East Lobby, Suite 700
1025 Xxxxxx Xxxxxxxxx Street, N.W.
Wasington, D.C. 20007-5201
To you, to the attention of the individual designated by you as the
safekeeping account administrator for our account, at:
The Chase Manhattan Bank
North American Insurance Securities Services
3 Chase XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
18. CONFIDENTIALITY. You agree to treat as confidential all record and
other information relating to us and the Portfolios. You agree to keep such
information confidential except when requested to divulge such information by
duly constituted authorities, or when so requested by us.
19. GOVERNING LAW, SUCCESSORS AND ASSIGNS, HEADINGS. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to laws as to conflicts of laws, and shall be binding
on our and your respective successors
-12-
and assigns. We and you hereby irrevocably submit to the exclusive jurisdiction
of the state and federal courts in the State and County of New York for the
purposes of any suit, action or other proceedings arising out of this
Agreement. We and you hereby irrevocably waive any objection on the ground of
venue, forum non convenient, or any similar grounds, and irrevocably consent to
service of process by mail or in any manner permitted by New York law. The
headings of the paragraphs hereof are included for convenience of reference
only and do not form a part of this Agreement.
20. INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, you and we may from time to time agree on such
provisions interpretive of or in addition to the provision of this Agreement as
may in our joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions will be in a writing
signed by both of us and will be annexed to this Agreement.
21. DELAWARE BUSINESS TRUST. With respect to the Trust, which is a
party to this Agreement and which is organized as a business trust under the
Delaware Business Trust Act, the term Trust means and refers to the Trustees
serving under the applicable Trust Instrument. It is expressly understood that
the obligations of the Trust under this Agreement will not be binding on any of
the Trustees, Portfolio shareholders, nominees, officers, agents or employees
of the Trust personally, but bind only the property of the Trust's Portfolios.
22. PRIOR PROPOSALS. This Agreement (including any Riders relating to
additional services in respect of the Custody Account we may request of you)
shall contain the complete agreement of the parties hereto with respect to the
Custody Account (except as may be expressly provided to the contrary herein)
and supersedes and replaces any previously made proposals, representations,
warranties or agreements with respect thereto by either or both of the parties
hereto. This Agreement shall become effective upon execution hereof by us and
acceptance by you or as of the effective date of the Trust or its commencement
of operations, as we mutually agree.
23. SEPARABILITY. Any provisions of this Agreement which may be
determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
24. RESERVATION OF RIGHT. You shall have the right not to accept for
deposit to the Custody Account any securities which are in a form or condition
which you, in your sole discretion, determine not to be suitable for the
services you provide under this Agreement.
Your rights and remedies under this Agreement shall be in addition to,
and not in limitation of, any other rights and remedies you may have under
applicable law.
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25. ADDITIONAL DUTIES. If we shall ask you to perform duties or
responsibilities not specifically set forth in this Agreement and you choose to
perform such additional duties or responsibilities, you shall be held to the
same standard of care and you shall be entitled to all the protective
provisions (including but not limited to limitation of liability and
indemnification) set forth herein.
26. COUNTERPARTS. This Agreement may be executed in several
counterparts each of which shall be deemed to be an original and together shall
constitute one and the same agreement.
27. MISCELLANEOUS. We understand that we may request to have a Custody
Account established under this Agreement which is not linked to a Cash Account.
We understand further that with respect to any such Custody Account so
established any funds received by you in respect of transactions for such
Custody Account will be credited to the Custody Account and, further, funds
credited to the Custody Account must be transferred by us by means of
instruction (a "payment order") to one of your account administrators assigned
by you for the Custody Account, which you will identify to us. We agree that
payment orders and communications seeking to cancel or amend payment orders
which are issued by telephone, telecopier or in writing shall be subject to a
mutually agreed security procedure and you may execute or pay payment orders
issued in our name when verified by you in accordance with such procedure.
In executing or paying a payment order you may rely upon the
identifying number (e.g. Fedwire routing number or account) or any party as
instructed in the payment order. We assume full responsibility for any
inconsistency between the name and identifying number of any party in payment
orders issued to you in our name.
-14-
With respect to any Custody Account established under this Agreement
which is not linked to a Cash Account, all references to Cash Account shall be
read to mean Custody Account.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on its behalf by its duly authorized
representative.
EQ ADVISORS TRUST
By: /s/
-------------------------------
Title:
----------------------------
Date:
-----------------------------
THE CHASE MANHATTAN BANK
By: /s/
-------------------------------
Title:
----------------------------
Date:
-----------------------------
-15-
APPENDIX A
Portfolios of
EQ Advisors Trust
X. Xxxx Price International Stock Portfolio
X. Xxxx Price Equity Income Portfolio
EQ/Xxxxxx Growth & Income Value Portfolio
EQ/Xxxxxx International Equity Portfolio
EQ/Xxxxxx Investors Growth Portfolio
EQ/Xxxxxx Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Xxxxxx Xxxxxxx Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Xxxxxxx Xxxxx World Strategy Portfolio
Xxxxxxx Xxxxx Basic Value Equity Portfolio
GLOBAL CUSTODY RIDER
TO
DOMESTIC CUSTODY AGREEMENT
FOR
MUTUAL FUNDS
We hereby request you, THE CHASE MANHATTAN BANK, to provide to us and
the Portfolios Global Custody Services subject to the terms of our Domestic
Custody Agreement with you, and the terms herein. If there is any conflict
between the terms in our Domestic Custody Agreement and the terms in this Rider
with regard to your providing Global Custody Services to us, the terms of this
Rider shall govern. The terms of this Rider shall be effective as of the date
you commence to provide Global Custody Services to us.
1. Maintenance of Securities and Cash Outside the United States.
Unless our instructions specifically require another location
acceptable to you and permitted under applicable law:
(a) securities shall be held in the country or other jurisdiction in
which the principal trading market for such securities are located, where
such securities are to be presented for payment or where such securities
are acquired; and
(b) cash shall be credited to an account in a country or other
jurisdiction in which such cash may be legally deposited or is the legal
currency for the payment of public or private debts.
Cash may be held pursuant to instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent you can comply with our instructions to you, you are authorized
to maintain cash balances on deposit for us with you or one of your
"Affiliates" at such reasonable rates of interest as may from time to time be
paid on such accounts, or in non-interest bearing accounts as we may direct, if
acceptable to you. For purposes hereof, the term "Affiliate" shall mean an
entity controlling, controlled by, or under common control with, you.
If we wish to have any of the securities held in the custody of an
institution other than the established Subcustodians as defined in Section 2
hereof (or their securities depositories), such arrangement must be authorized
by a written agreement, signed by you and us.
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2. Subcustodians and Depositories.
You may act under this Rider through the subcustodians listed in
Schedule A hereto with which you have entered into subcustodial agreements
("Subcustodians"). We authorize you to hold securities recorded to the Custody
Account in accounts which you have established with one or more of your
branches or Subcustodians. You and Subcustodians are authorized to hold any of
the securities in your accounts with any Depository in which you or they
participate.
You may add new, replace or remove Subcustodians. We shall be given
reasonable notice by you of any amendment to Schedule A. Upon our request, you
shall identify the name, address and principal place of business of any
Subcustodian of our securities and the name and address of the governmental
agency or other regulatory authority that supervises or regulates such
Subcustodian.
With respect to securities maintained outside the United States, the
terms Subcustodian and securities depositories as used herein shall mean a
branch of a qualified U.S. bank, an eligible foreign custodian or an eligible
foreign securities depository as those terms are defined in Securities and
Exchange Commission ("SEC") Rule 17f-5 under the 1940 Act.
We represent that our Board of Directors has approved each of the
Subcustodians listed in Schedule A hereto and the terms of the subcustody
agreements between you and each Subcustodian, which are attached as Schedule A,
and further represent that our Board has determined that the use of each
Subcustodian and the terms of each subcustody agreement are consistent with the
best interests of the Trust, the relevant Portfolios and their shareholders (to
the extent such approvals are required under the 1940 Act and the relevant SEC
rules thereunder). You shall supply us with any proposed amendment to Schedule
A, but you shall not place Trust assets with proposed Subcustodians until you
have received from us evidence of a certified resolution representing Board
approval of such amendment, as required. We have supplied or shall supply you
with certified copies of our Board of Trustees resolutions with respect to the
foregoing prior to your placing* securities with any Subcustodian so approved.
3. Use of Subcustodian.
(a) You shall identify the securities on your books as belonging to
us.
(b) A Subcustodian shall hold the Portfolios' securities in accounts
identified on such Subcustodian's books as for your exclusive benefit as our
agent.
(c) Any securities in the accounts held by a Subcustodian shall be
subject only to the instruction of you or your agent. Any securities held in a
Depository for the account of a Subcustodian shall be subject only to the
directions of such Subcustodian.
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(d) Any agreement you enter into with a Subcustodian for holding your
customers' assets shall provide that (i) such assets shall not be subject to
any right, charge, security interest, lien or claim of any kind in favor of
such Subcustodian except for safe custody or administration; (ii) the
beneficial ownership of such assets shall be freely transferable without the
payment of money or value other than for safe custody or administration; (iii)
your officers or auditors employed by you, or other representative of yours,
including, to the extent permitted under applicable law, our independent public
accounts, will be given access to the books and records of the Subcustodian
relating to its actions under its agreements with you; and (iv) our assets held
by the Subcustodian will be subject only to your instructions or the
instructions of your agent. Where securities are deposited by a Subcustodian
with a securities depository, you shall cause the Subcustodian to identify on
its books as belonging to you, as agent, the securities shown on the
Subcustodian's account on the books of such securities depository. The
foregoing shall not apply to the extent of any special agreement or arrangement
made by us with any particular Subcustodian.
(e) As long as SEC Rule 17f-5 or the 1981 Chase SEC Order requires the
Board of Directors/Trustees of a registered investment company directly to
approve its foreign custody arrangements, you shall furnish annually to us
information concerning Subcustodians similar in kind and scope as that
furnished to us in connection with the initial approval hereof. You shall
timely advise us of any material adverse change in the facts or circumstances
upon which such information is based where such changes would affect the
eligibility of the Subcustodian under Rule 17f-5 as soon as practicable after
you becomes aware of any such material adverse change in the normal course of
you custodial activities.
4. Global Securities Account Transactions.
(a) Securities shall be transferred, exchanged or delivered by you or
Subcustodian upon receipt by you of instructions which include all information
required by you. Settlement and payment for securities received for, and
delivery of securities out of, the Custody Account may be made in accordance
with the customary or established securities trading or securities processing
practices and procedures in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivery of securities to a purchaser,
dealer or their agents against a receipt with the expectation of receiving
later payment and free delivery. Delivery of securities out of the Custody
Account may be made in any manner specifically required by our instructions
acceptable to you.
All collections of funds or other property paid or distributed in
respect of securities in the Custody Account shall be made at our risk. You
shall have no liability for any loss occasioned by delay in the actual receipt
of notice by you or by Subcustodians of any payment, redemption or other
transaction regarding securities in the Custody Account in respect of which you
have agreed to take any action under the Agreement.
5. Corporate Actions; Proxies; Tax Reclaims.
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(a) Corporate Actions. Whenever you receive information concerning the
securities which requires discretionary action by the beneficial owner of the
securities (other than a proxy), such as subscription rights, bonus issues,
stock repurchase plans and rights offerings, or legal notices or other material
intended to be transmitted to securities holders ("Corporate Actions"), you
shall give us notice of such Corporate Actions to the extent that your central
corporate actions department has actual knowledge of a Corporate Action in time
to notify your customers.
When a rights entitlement or a fractional interest resulting from a
rights issue, stock dividend, stock split or similar Corporate Action is
received which bears an expiration date, you shall endeavor to obtain
instructions from us or an Authorized Officer, but if instructions are not
received in time for you to take timely action, or actual notice of such
Corporate Action was received too late to seek instructions, you are authorized
to sell such rights entitlement or fractional interest and to credit the Cash
Account with the proceeds or take any other action you deem, in good faith, to
be appropriate in which case you shall be held harmless for any such action.
(b) Proxy Voting. You shall provide proxy voting services, if elected
by us, in accordance with the terms of the Proxy Voting Services Rider hereto.
Proxy voting services may be provided by you or, in whole or in part, by one or
more third parties appointed by you (which may be your Affiliates); provided
that you shall be liable for the performance of any such third party to the
same extent as you would have been if you performed such services yourself.
(c) Tax Reclaims.
(i) Subject to the provisions hereof, you shall apply for a reduction
of withholding tax and any refund of any tax paid or tax credits which
apply in each applicable market in respect of income payments on securities
for our benefit which you believe may be available to us.
(ii) The provision of tax reclaim services by you is conditional upon
your receiving from us or to the extent beneficially owned by others, the
beneficial owners, of securities (A) a declaration of its identity and
place of residence and (B) certain other documentation (pro forma copies of
which are available from you). We acknowledge that, if you do not receive
such declarations, documentation and information, additional United Kingdom
taxation shall be deducted from all income received in respect of
securities issued outside the United Kingdom and that U.S. non-resident
alien tax or U.S. backup withholding tax shall be deducted from U.S. source
income. We shall provide to you such documentation and information as you
may require in connection with taxation, and warrant that, when given, this
information shall be true and correct in every respect, not misleading in
any way, and contain all material information. We undertake to notify you
immediately if any such information requires updating or amendment.
-19-
(iii) You shall not be liable to us or any third party for any taxes,
fines or penalties payable by you or us, and shall be indemnified
accordingly, whether these result from the inaccurate completion of
documents by us or any third party, or as a result of the provision to you
or any third party or inaccurate or misleading information or the
withholding of material information by us or any other third party, or as a
result of any delay of any revenue authority or any other matter beyond
your control.
(iv) We confirm that you are 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 the
Custody Account.
(v) You shall perform tax reclaim services only with respect to
taxation levied by the revenue authorities of the countries notified to us
from time to time and you may, by notification in writing, at your absolute
discretion, supplement or amend the markets in which the tax reclaim
services are offered. Other than as expressly provided in this sub-clause,
you shall have no responsibility with regard to our tax position or status
in any jurisdiction.
(vi) We confirm that you are authorized to disclose any information
requested by any revenue authority or any governmental body in relation to
us or the securities and/or cash held for us.
(vii) Tax reclaim services may be provided by you or, in whole or in
part, by one or more third parties appointed by you (which may be your
Affiliates); provided that you shall be liable for the performance of any
such third party to the same extent as you would have been if you performed
such services yourself.
6. Nominees.
Securities which are ordinarily held in registered form may be
registered in a nominee name of yours, Subcustodian or Depository, as the case
may be. You may without notice to us cause any such securities to cease to be
registered in the name of any such nominee and to be registered in our name. We
agree to hold you, Subcustodian, Depository and your and their respective
nominees harmless from any liability arising directly or indirectly from your
or their status as a mere record holder of securities in the Custody Account.
7. Standard of Care.
(a) Delete the second paragraph under "Custodian Responsibility" and
insert, in lieu thereof, the following:
You shall be liable to us for any loss which shall occur as the result of
the failure of a Subcustodian to exercise reasonable care with respect to
the safekeeping of securities to the same extent that you would be liable
to us if you were holding such securities in New
-20-
York. In the event of any loss to us by reason of the failure of a
Subcustodian to utilize reasonable care, you shall be liable to us only to
the extent of our direct damages, to be determined based on the market
value of the property which is the subject of the loss at the date of
discovery of such loss and without reference to any special conditions or
circumstances. You shall have no liability whatsoever for any
consequential, special, indirect or speculative loss or damages (including,
but not limited to, lost profits) suffered by us in connection with the
transactions contemplated hereby and the relationship established hereby
even if you have been advised as to the possibility of the same and
regardless of the form of the action. As long as you shall have been in
compliance with your obligations pursuant to Section 3(e) hereof, you shall
not be responsible for the insolvency of any Subcustodian which is not a
branch or Affiliate of yours.
(b) Add the following at the end of the "Custodian Responsibility" section:
i) You shall be entitled to rely, and may act, upon the advice of
counsel (who may be counsel for us) on all matters and shall be without
liability for any action reasonably taken or omitted pursuant to such
advice.
(ii) Without limiting anything else contained in this Section, you
shall not be liable for any loss which results from: 1) the general risk of
investing, or 2) investing or holding securities in a particular country
including, but not limited to, nationalization, expropriation or other
governmental actions; regulation of the banking or securities industry;
currency restrictions, devaluations or fluctuations; and market conditions
which prevent the orderly execution of securities transactions or affect
the value of securities.
(iii) Consistent with and without limiting the remainder hereof, it is
specifically acknowledged that you shall have no duty or responsibility to:
(i) question instructions; (ii) supervise or make recommendations with
respect to investments or the retention of securities; (iii) advise us or
any Authorized Person regarding any default in the payment of principal or
income of any security; (iv) review or reconcile trade confirmations
received from brokers. We shall bear any responsibility to review such
confirmations against instructions issued to and statements issued by you.
(iv) We authorize you to act hereunder (but do not indemnify you or
assume any liabilities you might incur in connection with actions you take
which are found by any regulatory agency or court of law to be improper)
notwithstanding that you or any of your divisions or Affiliates may have a
material interest in a transaction, or circumstances are such that you may
have a potential conflict of duty or interest including the fact that you
or any of your Affiliates may provide brokerage services to other
customers, act as financial advisor to the issuer of securities, act as a
lender to the issuer of securities, act in the same transaction as agent
for more than one customer, have a matenal interest in the issue of
securities, or earn profits from any of the activities listed herein
-21-
(v) You hereby warrant to us that in your opinion, after due inquiry,
the established procedures to be followed by each of your branches, each
branch of a qualified U.S. Bank, each eligible foreign custodian and each
eligible foreign securities depository holding our securities pursuant
hereto afford protection for such securities at least equal to that
afforded by your established procedures with respect to similar securities
held by you and your securities depositories in New York.
(c) At our election we will be entitled to be subrogated to your
rights with respect to any claims you may have against a Subcustodian as a
consequence of any loss, damage, cost, expense, liability or claim incurred by
us if and to the extent that we have not been made whole by you for any such
loss, damage, expense, liability or claim; it being understood that the
foregoing does not constitute a representation by you that that subrogation
will be permitted by applicable law.
8. Fees and Expenses.
We agree to pay you for Global Custody Services hereunder the fees set
forth in Schedule B hereto or such other amounts as may be agreed upon in
writing together with your reasonable out-of-pocket or incidental expenses,
including, but not limited to, legal fees.
9. Miscellaneous.
(a) Foreign Exchange Transactions. To facilitate the administration of
our trading and investment activity, you are authorized to enter into spot or
forward foreign exchange contracts with us or an Authorized Officer for us and
may also provide foreign exchange through your subsidiaries, Affiliates or
Subcustodians. Instructions including standing instructions, may be issued with
respect to such contracts but you may establish rules or limitations concerning
any foreign exchange facility made available. In all cases where you and your
subsidiaries, Affiliates or Subcustodian and, to the extent not inconsistent,
the Agreement shall apply to such transaction.
(b) Access to Records. You shall allow our independent public
accountants reasonable access to records relating to the Custody Account as is
required in connection with their examination of books and records pertaining
to our affairs. Subject to restrictions under applicable law, you shall also
obtain an undertaking to permit our independent public accountants reasonable
access to the records of any Subcustodian which has physical possession of any
securities as may be required in connection with the examination of our books
and records. Upon our reasonable request, you shall furnish us such reports (or
portions thereof) of your system of internal accounting controls applicable to
your duties hereunder. You shall endeavor to obtain and furnish us with such
similar reports as it may reasonably request with respect to each Subcustodian
and securities depository holding securities.
(c) Representation. By accepting our securities for safekeeping, you
acknowledge that the securities being placed in your custody are subject to the
1940 Act, as the same may be amended from time to time.
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(d) Compliance with Rule 17f-5. Except to the extent that you have
specifically agreed to comply with a condition of a rule, regulation,
interpretation promulgated by or under the authority of the Securities and
Exchange Commission ("SEC") or the Exemptive Order applicable to accounts of
this nature issued to you (1940 Act, Release No. 12053, November 20, 1981), as
amended, or unless you have otherwise specifically agreed, we shall be solely
responsible to assure that the terms of the arrangement for the custody of
securities hereunder complies with such rules, regulations, interpretations or
exemptive order promulgated by or under the authority of the SEC.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on its behalf by its duly authorized
representative.
EQ ADVISORS TRUST
By: /s/
--------------------------------
Title:
-----------------------------
Date:
------------------------------
THE CHASE MANHATTAN BANK
By: /s/
-------------------------------
Title:
----------------------------
Date:
-----------------------------
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AMENDMENT, dated April ___, 1997 to the April, 1997 custody agreement
entitled Domestic Custody Agreement ("Agreement"), between EQ Advisors Trust ,
having a place of business at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and The Chase Manhattan Bank, having a place of business at 000 Xxxx
Xxx., Xxx Xxxx, X.X. 00000-0000.
It is hereby agreed as follows:
Section 1. Except as modified hereby, the Agreement is confirmed in
all respects. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
Section 2. The Global Custody Rider ("Rider") to the Agreement is
amended as follows by adding the following as new ss.10:
"Unless the context clearly requires otherwise, the following words
shall have the meanings set forth below when used herein:
"(a) "CMBI" shall mean Chase Manhattan Bank International, an
indirect wholly-owned subsidiary of Bank, located in Moscow, Russia, and any
nominee companies appointed by it.
"(b) "International Financial Institution" shall mean any bank in
the top 1,000 (together with their affiliated companies) as measured by "Tier
1" capital or any broker/dealer in the top 100 as measured by capital.
"(c) "Negligence" shall mean the failure to exercise "Reasonable
Care".
"(d) "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 Fund, Inc. (SEC Ref.
No. 95-151-CC, File No. 811-8788) providing "no-action" relief under ss.17(f)
of The Investment Company Act of 1940, as amended, and SEC Rule 17f-5
thereunder, in connection with custody of such Xxxxxxxxx Russia Fund, Inc.'s
investments in Russian Securities.
"(e) "Reasonable Care" shall mean the use of reasonable custodial
practices under the applicable circumstances as measured by the custodial
practices then prevailing in Russia of International Financial Institutions
acting as custodians for their institutional investor clients in Russia.
"(f) "Registrar Company" shall mean any entity providing share
registration services to an issuer of Russian Securities.
"(g) "Registrar Contract" shall mean a contract between CMBI and
a Registrar Company (and as the same may be amended from time to time)
containing, inter alia, the contractual provisions described at paragraphs
(a)-(e) on pps. 5-6 of the No-Action Letter.
"(h) "Russian Security" shall mean a Security issued by a Russian
issuer.
"(i) "Share Extract" shall mean: (1) an extract of its share
registration books issued by a Registrar Company indicating an investor's
ownership of a security; and (2) a form prepared by CMBI or its agent in those
cases where a Registrar Company is unwilling to issue a Share Extract.
Section 3. Section 4(a) of the Rider is amended by adding the
following at the end of the first paragraph thereof: "With respect to Russia,
payment for Russian Securities shall not be made prior to the issuance and
receipt of the Share Extract (as defined in Section 10(i)(1)) relating to such
Russian Security. Delivery of Russian Securities may be made in accordance with
the customary or established securities trading or securities processing
practices and procedures in Russia. Delivery of Russian Securities may also be
made in any manner specifically required by Instructions acceptable to you. We
shall promptly supply such transaction and settlement information as may be
requested by you or CMBI in connection with particular transactions."
Section 4. Section 5 of the Rider is amended by adding a new paragraph
to the end thereof as follows: "It is understood and agreed that you need only
use your reasonable efforts with respect to performing the functions described
in this ss.5 with respect to Russian Securities (except that you shall use
Reasonable Care with respect to your duties to transmit information to us), it
being understood that proxy voting services are not available. To the extent
that you receive proxy materials (whether or not received in a timely fashion),
you will forward the same to us upon request and without translation."
Section 5. Section 7(a) of the Agreement and the Rider are amended
with respect to Russian custody by deleting the phrase "reasonable care"
wherever it appears and substituting, in lieu thereof, the phrase "Reasonable
Care".
Section 6. Section 7(a) of the Rider is amended with respect to
Russian custody by inserting the following at the end of the first sentence
thereof: "; provided that, with respect to Russian Securities, your
responsibilities shall be limited to safekeeping of relevant Share Extracts."
Section 7. Section 7(a) of the Rider is further amended with respect
to Russian custody by inserting the following after the second sentence
thereof: "Delegation by you to CMBI shall not relieve you of any responsibility
to us for any loss due to such delegation, and you shall be liable for any loss
or claim arising out of or in connection with the performance by CMBI of such
delegated duties to the same extent as if you had yourself provided the custody
services hereunder. In connection with the foregoing, neither you nor CMBI
shall assume responsibility for, and neither shall be liable for, any action or
inaction of any Registrar Company and no Registrar Company shall be, or shall
be deemed to be, you, CMBI, a Subcustodian, a 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 you or CMBI
with respect to Russian Securities, neither you 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 Negligence or in bad faith, except that
where you or CMBI uses (i) an affiliated nominee or (ii) an agent to perform
the share registration or share confirmation functions described in paragraphs
(a)-(e) on pps. 5-6 of the No-Action Letter, and, to the extent applicable to
CMBI, the share registration functions described on pps. 2-3 of the No-Action
Letter, you and CMBI shall be liable to us as if CMBI were responsible for
performing such services itself."
Section 8. Add a new Section 11 to the Rider as follows:
"(a) You will advise us (and will update such advice from time to
time as changes occur) of those Registrar Companies with which CMBI has entered
into a Registrar Contract. You shall cause CMBI both to monitor each Registrar
Company and to promptly advise us and our investment advisor when CMBI has
actual knowledge of the occurrence of any one or more of the events described
in paragraphs (i)-(v) on pps. 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 us.
"(b) Where we are considering investing in the Russian Securities
of an issuer as to which CMBI does not have a Registrar Contract with the
issuer's Registrar Company, we may request that you ask that CMBI both consider
whether it would be willing to attempt to enter into such a Registrar Contract
and to advise us of its willingness to do so. Where CMBI has agreed to make
such an attempt, you will advise us of the occurrence of any one or more of the
events described in paragraphs (i)-(iv) on pps. 8-9 of the No-Action Letter of
which CMBI has actual knowledge.
(c) Where we are considering investing in the Russian Securities
of an issuer as to which CMBI has a Registrar Contract with the issuer's
Registrar Company, we may advise you of our interest in investing in such
issuer and, in such event, you will advise us of the occurrence of any one or
more of the events described in paragraphs (i)-(v) on pps. 8-9 of the No-Action
Letter of which CMBI has actual knowledge."
Section 9. Add a new Section 12 to the Rider as follows: "We shall pay
for and hold you 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 you, CMBI or their respective agents with respect to
income on our Russian Securities.
Section 10. Add a new Section 13 to the Rider as follows: "We
acknowledge and agree that CMBI may not be able, in given cases and despite its
reasonable efforts, to obtain a Share Extract from a Registrar Company and CMBI
shall not be liable in any such event including with respect to any losses
resulting from such failure."
Section 11. Add a new Section 14 to the Rider as follows: "We
acknowledge that we have received, reviewed and understands your market report
for Russia, including, but not limited to, the risks described therein."
Section 12. Add a new Section 15 to the Rider as follows: "Subject to
the cooperation of a Registrar Company, for at least the first two years
following CMBI's first use of a Registrar Company, you 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 our Board of
Directors, in consultation with CMBI, determines it to be appropriate."
Section 13. Add a new Section 16 to the Rider as follows: "You shall
cause CMBI to prepare for distribution to our Board of Directors a quarterly
report identifying: (i) any concerns it has regarding the Russian share
registration system that should be brought to the attention of the Board of
Directors; and (ii) the steps CMBI has taken during the reporting period to
ensure that our interests continue to be appropriately recorded."
Section 14. Add a new Section 17 to the Rider as follows: "Except as
provided in new ss.11(b), the services to be provided by you hereunder will be
provided only in relation to Russian Securities for which CMBI has entered into
a Registrar Contract with the relevant Registrar Company."
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
EQ Advisors Trust THE CHASE MANHATTAN BANK
By: /s/ By: /s/
------------------------------- -------------------------------
Name: Name:
Title: Title:
Date: Date:
