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CUSTODY AGREEMENT
This Custody Agreement is dated as of , 1999 between The Chase
Manhattan Bank, (the "Custodian"), and XANTHUS FUND, L.L.C., a Delaware limited
liability company (the "Client").
1. Appointment and Acceptance; Accounts. (a) The Client hereby appoints
the Custodian as a custodian of Property (as defined below) owned or under the
control of the Client that is delivered to the Custodian, or any Subcustodian as
appointed below, from time to time to be held in custody for the benefit of the
Client. In this regard, the Client agrees to deliver or cause to be delivered to
the Custodian all Property.
(b) Prior to the delivery of any Property by the Client to the
Custodian, the Client shall deliver to the Custodian each document and other
item listed in Appendix 1. In addition, the Client shall deliver to the
Custodian any additional documents or items as the Custodian may deem necessary
for the performance of its duties under this Agreement.
(c) The Client instructs the Custodian to establish on the books and
records of the Custodian the accounts listed in Appendix 2 (the "Accounts") in
the name of the Client. Upon receipt of Authorized Instructions (as defined
below) and appropriate documentation, the Custodian shall open additional
Accounts for the Client. Upon the Custodian's confirmation to the Client of the
opening of such additional Accounts, or of the closing of Accounts, Appendix 2
shall be deemed automatically amended or supplemented accordingly. The Custodian
shall record in the Accounts and shall at all times have general responsibility
for the safekeeping of all securities, including without limitation, shares,
stocks, bonds, debentures, notes, mortgages or other obligations and any
certificates, receipts or warrants (collectively, "Securities"), cash, cash
equivalents and other property (all such Securities, cash, cash equivalents and
other property being collectively the "Property") of the Client that are
delivered to the Custodian for custody. Except with respect to Securities held
in custody or deposit accounts maintained with Subcustodians, securities
depositories or clearing agencies, the Custodian shall at all times hold and
physically segregate for the Client all Securities held by the Custodian
hereunder.
(d) The procedures the Custodian and the Client will use in performing
activities in connection with this Agreement are set forth in a client services
guide provided to the Client by the Custodian, as such guide may be amended from
time to time by the Custodian by written notice to the Client (the "Client
Services Guide").
2. Subcustodians. (a) The Property may be held in custody and deposit
accounts that have been established by the Custodian with (i) one or more
domestic banks (as such term is defined by the Investment Company Act of 1940,
the "Act") which are eligible to serve as a custodian for investment companies
under Section 17 of the Act or foreign banks which are "Eligible Foreign
Custodians" (as such term is defined in Rule 17f-5(c)(2) of the Act), as listed,
together with any domestic banks, on Exhibit A, except as otherwise noted on
such Exhibit (the "Subcustodians"), as such Exhibit may be amended from time to
time by the Custodian by sixty (60) days prior written notice to the Client, or
(ii) through the facilities of (A) one or more domestic clearing agencies
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registered with the Securities and Exchange Commission (the "SEC") under Section
17A of the Securities Exchange Act of 1934 which acts as a securities depository
or the book-entry system as provided in Subpart O of Treasury Circular Xx. 000,
00 XXX 000, Xxxxxxx X of 31 CFR Part 350 and the book-entry regulations of
Federal agencies substantially in the form of Subpart O or (B) one or more
foreign securities depositories or clearing agencies, as such domestic clearing
agencies, foreign securities depositories or clearing agencies are listed on
Exhibit B, as such Exhibit may be amended from time to time by the Custodian by
sixty (60) days prior written notice to the Client. The Custodian agrees to
deliver any Securities in its or its Subcustodians' possession as directed by
the Client in accordance with Section 7 herein.
(b) The Custodian shall hold Property through a Subcustodian,
securities depository or clearing agency only if (i) such Subcustodian and any
securities depository or clearing agency in which such Subcustodian or the
Custodian holds Property, or any of their creditors, may not assert any right,
charge, security interest, lien, encumbrance or other claim of any kind to such
Property except a claim of payment for its safe custody or administration and
(ii) beneficial ownership of such Property may be freely transferred without the
payment of money or value other than for safe custody or administration. Any
Subcustodian may hold Property in a securities depository and may utilize a
clearing agency, subject to the terms of this Agreement.
3. Records. With respect to Property held by a Subcustodian, securities
depository or clearing agency:
(a) The Custodian may hold Property for all of its customers with a
Subcustodian in a single account identified as belonging to the Custodian for
the benefit of its customers or with a securities depository or clearing agency
in a single account identified as belonging to the Client or the Custodian or
Subcustodian for the benefit of their customers; provided that the use of such
single account is consistent with paragraph (b) in Section 2 above and that such
single account at the Subcustodian shall include only assets belonging to the
customers of the Custodian and such single account at any securities depository
or clearing agency shall include only assets belonging to the Client, customers
of the Custodian or customers of the Subcustodian, as the case may be;
(b) The Custodian shall identify on its books as belonging to the
Client any Property held by a Subcustodian, securities depository or clearing
agency;
(c) The Custodian shall require that Property held by the Subcustodian
be identified on the Subcustodian's books as separate from any other property
held by the Subcustodian other than property of the Custodian's customers held
solely for the benefit of customers of the Custodian; and
(d) The Custodian shall send the Client a confirmation of any transfers
to or from the Account. Where Securities are transferred to or from the Account,
the Custodian shall also, by book-entry or otherwise, identify as belonging to
the Client a quantity of Securities in a fungible bulk of securities (i)
registered in the name of the Custodian (or its nominee) or (ii) shown on the
Client's, Custodian's or Subcustodian's, as the case may be, account on the
books of the securities depository, clearing agency, book-entry system or the
Custodian's account on the books of the Subcustodian and
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the Custodian shall promptly send to the Client any report it or its
Subcustodian receives from the appropriate Federal Reserve Bank or clearing
agency on its respective system of internal accounting control. The Custodian
shall send to the Client such reports on its or its Subcustodian's own system of
internal accounting control as the Client may reasonably request from time to
time.
(e) In the event the Subcustodian holds Property in a securities
depository or clearing agency, such Subcustodian shall be required by its
agreement with the Custodian to identify on its books such Property as being
held for the account of the Custodian as custodian for its customers or in such
other manner as is required by local law or market practice. Notwithstanding any
other provision in this Agreement, no Subcustodian shall be permitted to deposit
Securities in any securities depository or utilize a clearing agency,
incorporated or organized under the laws of a country other than the United
States, other than the Euro-clear System or Centrale de Livraison des Valeurs
Mobilieres S.A., without the written permission of the Custodian unless such
depository or clearing agency operates the central system for handling of
securities or equivalent book-entries in that country or pursuant to Authorized
Instructions.
4. Access to Records. The Custodian shall allow the Client's
accountants reasonable access to the Custodian's records relating to the
Property held by the Custodian as such accountants may reasonably require in
connection with their examination of the Client's affairs. The Custodian shall
also obtain from any Subcustodian (and shall require each Subcustodian to use
reasonable efforts to obtain from any securities depository or clearing agency
in which it deposits Property) an undertaking, to the extent consistent with
local practice and the laws of the jurisdiction or jurisdictions to which such
Subcustodian, securities depository or clearing agency is subject, to permit
independent public accountants such reasonable access to the records of such
Subcustodian, securities depository or clearing agency as may be reasonably
required in connection with the examination of the Client's affairs or to take
such other action as the Custodian in its judgment may deem sufficient to ensure
such reasonable access.
5. Reports. The Custodian shall provide from time to time, but in no
event less frequently than monthly, such reports and other information to the
Client and to such persons as the Client directs as the Custodian and the Client
may agree from time to time. Such reports shall identify the Property in the
Accounts and shall include without limitation (i) the identity of any entity
having custody of the Property and (ii) any transfers of Property to or from the
Accounts.
In addition, the Custodian shall furnish annually to the Client
information concerning the Subcustodians employed by the Custodian on behalf of
the Client. Such information shall be similar in kind and scope to that
furnished to the Client initially by the Custodian as of the date of this
Agreement. The Custodian agrees to promptly inform the Client in the event the
Custodian learns of a material adverse change in the financial condition of a
Subcustodian or is notified by any Subcustodian that such Subcustodian's
shareholders' equity has declined, (or there appears to be a substantial
likelihood that it will decline) below the requisite shareholder's equity
requirements identified in Rule 17f-5 of the Act or any applicable exemptive
order issued by the SEC under such Rule 17f-5.
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6. Payment of Monies. Except as provided in Sections 9, 13 and 17, the
Custodian shall make, or cause any Subcustodian to make, payments from monies
being held in the Accounts pursuant to Authorized Instructions as follows:
(a) upon the purchase of Securities for the account of the Client and
then only upon the delivery of such Securities except as may otherwise be
consistent with local custom or market practice in the applicable jurisdiction
where settlement occurs;
(b) for payments to be made in connection with the conversion, exchange
or surrender of Securities;
(c) upon request of the Client that the Custodian transfer monies being
held in the Accounts to another custodian of the Client or to an account of the
Client at a deposit bank;
(d) to partners of the Client in connection with any distribution to
such partners or in connection with the repurchase by the Client from such
partners of interest in the Client;
(e) to third persons in payment of the fees or charges of such third
persons for services provided to the Client or for expenses incurred in the
operation of the Client;
(f) upon termination of this Custody Agreement as hereinafter set forth
in Section 17; and
(g) for any other purpose upon receipt of Authorized Instructions.
All payments pursuant to this Section 6 shall be made only upon receipt by the
Custodian of Authorized Instructions of the Client; provided, however, that: (i)
the Authorized Instructions for purposes of subparagraph (b), (c), (d), (e) or
(f) of this Section 6 shall be accepted and valid only if (A) such Authorized
Instructions explicitly state that the related payments are in connection with
the transactions contemplated by (b), (c), (d), (e) or (f) above, as the case
may be, in accordance with the procedures for processing such Authorized
Instructions set forth in Exhibit C hereto and (B) that such Authorized
Instructions have been given by an Authorized Person who is identified on
Appendix 3 as an employee of CIBC Xxxxxxxxxxx Corp. ("CIBC Opco"); (ii) any
payment in accordance with subparagraphs (a), (b), (c), (d) or (e) of this
Section 6 shall be made only to such specifically identified accounts as shall
have been pre-designated by the Client to receive such payments, the initial
pre-designated accounts as of the date of this Agreement shall be limited to
those accounts at both Xxxxxx Xxxxxxx & Co. Incorporated and PFPC, Inc. (or any
successor administrator of the Client) identified in accordance with the
procedures for processing such Authorized Instructions set forth in Exhibit C
hereto and no additional accounts shall be considered pre-designated without the
written agreement of each of the parties to this Agreement; and (iii) any
payment pursuant to subparagraph (g) shall be made only if accompanied by a
certificate of an Authorized Person who is identified on Appendix 3 as an
employee of CIBC Opco specifying the purpose of such payment and stating that
the purpose thereof is a proper one which has been duly authorized by all
necessary action of the Client in accordance with the procedures for processing
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such Authorized Instructions set forth in Exhibit C hereto. In the event that it
is not possible to make a payment in accordance with Authorized Instructions of
the Client, the Custodian shall proceed in accordance with the procedures set
forth in the Client Services Guide, except as may be otherwise provided by this
Agreement.
The Custodian may act as the Client's agent or act as a principal in
foreign exchange transactions at such rates as are agreed from time to time
between the Client and the Custodian.
7. Transfer of Securities and Non-Cash Property. Except as provided in
Sections 9, 13 and 17, the Custodian shall make, or cause any Subcustodian to
make, transfers, exchanges or deliveries of Securities or other non-cash
Property pursuant to Authorized Instructions as follows:
(a) upon sale of such Securities for the account of the Client and then
only upon receipt of payment therefor except as may otherwise be consistent with
local custom or market practice in the applicable jurisdiction where settlement
occurs;
(b) upon exercise of conversion, subscription, purchase or other
similar rights represented by such Securities;
(c) in the case of warrant, rights or similar securities, upon the
surrender thereof in the exercise of such warrants, rights or similar
securities;
(d) for delivery in connection with any loans of securities made by the
Client, but only against receipt of such collateral as agreed upon from time to
time by the Custodian and the Client;
(e) to partners of the Client in connection with any distributions in
kind to the specifically designated accounts described in clause (ii) below to
such partners to or in connection with the repurchase by the Client from such
partners of interests in the Client in kind;
(f) upon the termination of this Custody Agreement as hereinafter set
forth in Section 17; and
(g) for any other purpose upon receipt of Authorized Instructions.
Except as provided below, all transfer, exchanges or deliveries ("Transfers") of
Securities or other non-cash Property pursuant to this Section 7 shall be made
only upon receipt by the Custodian of Authorized Instructions of the Client;
provided, however, that: (i) the Authorized Instructions for purposes of
subparagraphs (b), (c), (d), (e) or (f) of this Section 7 shall be accepted and
valid only if (A) such Authorized Instructions explicitly state that the related
Transfer is in connection with the transactions contemplated by (b), (c), (d),
(e) or (f) of this Section 7, as the case may be, in accordance with the
procedures for processing such Authorized Instructions set forth in Exhibit C
hereto and (B) such Authorized Instructions have been given by an Authorized
Person who is identified on Appendix 3 as a director, principal, officer or
employee of CIBC Xxxxxxxxxxx
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Advisers L.L.C., accordance with subparagraphs (a), (b), (c), (d) (e) or (f) of
this Section 7 shall be made only to such specifically identified accounts as
shall have been pre-designated by the Client to receive deliveries of Securities
or non-cash Property, the initial pre-designated accounts as of the date of this
Agreement shall be limited to those accounts at both Xxxxxx Xxxxxxx & Co.
Incorporated and PFPC, Inc. (or any successor administrator to the Client)
identified in accordance with the procedures for processing such Authorized
Instructions set forth in Exhibit C hereto and no additional accounts shall be
considered pre-designated without the written agreement of each of the parties
to this Agreement; and (iii) any delivery pursuant to subparagraph (g) of this
Section 7 shall be made only if accompanied by a certificate of an Authorized
Person who is identified on Appendix 3 as a director, principal, officer or
employee of CIBC Xxxxxxxxxxx Advisers L.L.C., specifying the purpose of such
delivery and stating that the purpose thereof is a proper one which has been
duly authorized by all necessary action of the Client in accordance with the
procedures for processing such Authorized Instructions set forth in Exhibit C
hereto. In the event that it is not possible to transfer Securities or other
non-cash Property in accordance with such Authorized Instructions, such
Transfers shall be made in accordance with the procedures set forth in the
Client Services Guide, except as may be otherwise provided by this Agreement.
8. Corporate Action. (a) The Custodian shall notify the Client of
details of all corporate actions affecting the Client's Securities promptly upon
its receipt of such information.
(b) The Custodian shall take, or cause any Subcustodian to take, such
action in response to any such corporate action as may be permissible or
necessary only in accordance with Authorized Instructions or as provided in this
Section 8 or Section 9.
(c) Neither the Custodian nor any nominee of Custodian shall vote any
of the Securities by or for the Accounts except in accordance with Authorized
Instructions. The Custodian shall promptly deliver, or cause to be executed and
delivered, to the Client all notices, proxies and proxy soliciting materials
with relation to such Securities, such proxies to be executed by the registered
holder of such Securities (if registered otherwise than in the name of the
Client), but without indicating the manner in which such proxies are to be
voted;
(d) The Custodian shall transmit promptly to the Client all written
information (including, without limitation, pendency of calls and maturities of
Securities and expiration of rights in connection therewith) received by the
Custodian from issuers of Securities being held for the Client. With respect to
tender or exchange offers, the Custodian shall transmit promptly to the Client
all written information received by the Custodian from issuers of the Securities
whose tender or exchange is sought and from the party (or its agents) making the
tender or exchange offer.
(e) In the event the Client does not provide timely Authorized
Instructions to the Custodian with respect to a corporate action, the Custodian
shall act in accordance with the default option provided by local market
practice and/or the issuer of the Securities.
(f) Fractional shares resulting from corporate action activity shall be
treated in accordance with local market practices.
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9. General Authority. In the absence of Authorized Instructions to the
contrary, the Custodian may, and may authorize any Subcustodian to:
(a) make payments to itself or others for expenses of handling Property
or other similar items relating to its duties under this Agreement, provided
that all such payments shall be accounted for to the Client;
(b) receive and collect all income, cash dividends and principal with
respect to Securities and to credit cash receipts to the Accounts;
(c) receive and collect all stock dividends, rights and similar
securities issued with respect to any Securities held by the Custodian
hereunder;
(d) exchange Securities when the exchange is purely ministerial
(including, without limitation, the exchange of interim receipts or temporary
securities for securities in definitive form and the exchange of warrants, or
other documents of entitlement to securities, for the securities themselves);
(e) with prior notice to the Client, surrender Securities at maturity
or when called for redemption upon receiving payment therefor;
(f) execute in the Client's name such ownership and other certificates
as may be required to obtain the payment of income from Securities;
(g) pay or cause to be paid, from the Accounts, any and all taxes and
levies in the nature of taxes imposed on Property by any governmental authority
in connection with custody of and transactions in such Property;
(h) endorse for collection, in the name of the Client, checks, drafts
and other negotiable instruments;
(i) take non-discretionary action on mandatory corporate actions; and
(j) in general, attend to all nondiscretionary details in connection
with the custody, sale, purchase, transfer and other dealings with the Property.
10. Authorized Instructions; Authorized Persons. (a) Except as
otherwise provided in Sections 6 through 9, 13 and 17, all payments of monies,
all transfers, exchanges or deliveries of Property and all responses to
corporate actions shall be made or taken only upon receipt by the Custodian of
Authorized Instructions; provided that such Authorized Instructions are timely
received by the Custodian in accordance with the procedures for processing such
Authorized Instructions set forth on Exhibit C. "Authorized Instructions" of the
Client means instructions from an Authorized Person received by telecopy, tested
telex, electronic link or other electronic means or by such other means as may
be agreed in writing between the Client and the Custodian.
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(b) "Authorized Person" means each of the persons or entities
identified on Appendix 3 as amended from time to time by written notice from the
Client to the Custodian. The Client represents and warrants to the Custodian
that each Authorized Person listed in Appendix 3, as amended from time to time,
is authorized to issue Authorized Instructions on behalf of the Client and the
Client has set forth in Appendix 3 the specific types of instructions that each
such Authorized Person is authorized to deliver pursuant to this Agreement.
Prior to the delivery of the Property to the Custodian, the Custodian shall
provide a list of designated system user ID numbers and passwords that the
Client shall be responsible for assigning to Authorized Persons. The Custodian
shall assume that an electronic transmission received and identified by a system
user ID number and password was sent by the Authorized Person assigned such user
ID number. The Custodian agrees to provide additional designated system user ID
numbers and passwords as needed by the Client. The Client authorizes the
Custodian to issue new system user ID numbers upon the request of a previously
existing Authorized Person. Upon the issuance of additional system user ID
numbers by the Custodian to the Client, Appendix 3 shall be deemed automatically
amended accordingly. The Client authorizes the Custodian to receive, act and
rely upon any Authorized Instructions received by the Custodian which have been
issued, or purport to have been issued, by an Authorized Person.
(c) Any Authorized Person may cancel/correct or otherwise amend any
Authorized Instruction received by the Custodian, but the Client agrees to
indemnify the Custodian for any liability, loss or expense incurred by the
Custodian and its Subcustodians as a result of their having relied upon or acted
on any prior Authorized Instruction. An amendment or cancellation of an
Authorized Instruction to deliver or receive any security or funds in connection
with a trade will not be processed once the trade has settled.
11. Registration of Securities. (a) In the absence of Authorized
Instructions to the contrary, Securities which must be held in registered form
shall be registered in the name of the Custodian or the Custodian's nominee or,
in the case of Securities in the custody of an entity other than the Custodian,
in the name of the Custodian, its Subcustodian or any such entity's nominee. The
Custodian may, without notice to the Client, cause any Securities to be
registered or re-registered in the name of the Client.
(b) Where the Custodian has been instructed by the Client to hold any
Securities in the name of any person or entity other than the Custodian, its
Subcustodian or any such entity's nominee, the Custodian shall not be
responsible for any failure to collect such dividends or other income or
participate in any such corporate action with respect to such Securities.
12. Deposit Accounts. All cash received by the Custodian for the
Accounts shall be held by the Custodian as a short-term credit balance in favor
of the Client and, if the Custodian and the Client have agreed in writing in
advance that such credit balances shall bear interest, the Client shall earn
interest at the rates and times as agreed between the Custodian and the Client.
The Client acknowledges that any such credit balances shall not be accompanied
by the benefit of any governmental insurance.
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13. Short-term Credit Extensions. (a) From time to time, the Custodian
may extend or arrange short-term credit for the Client which is (i) necessary in
connection with payment and clearance of securities and foreign exchange
transactions or (ii) pursuant to an agreed schedule, as and if set forth in the
Client Services Guide, of credits for dividends and interest payments on
Securities. All such extensions of credit shall be repayable by the Client on
demand.
(b) The Custodian shall be entitled to charge the Client interest for
any such credit extension at rates to be agreed upon from time to time or, if
such credit is arranged by the Custodian with a third party on behalf of the
Client, the Client shall reimburse the Custodian for any interest charge. In
addition to any other remedies available, the Custodian shall be entitled to a
right of set-off against the Property to satisfy the repayment of such credit
extensions and the payment of, or reimbursement for, accrued interest thereon.
14. Representations and Warranties. (a) The Client represents and
warrants that (i) the execution, delivery and performance of this Agreement
(including, without limitation, the ability to obtain the short-term extensions
of credit in accordance with Section 13) are within the Client's power and
authority and have been duly authorized by all requisite action (corporate or
otherwise) of the Client and of the beneficial owner of the Property, if other
than the Client, and (ii) this Agreement (including, without each extension of
short-term credit extended to or arranged for the benefit of the Client in
accordance with Section 13) shall at all times constitute a legal, valid and
binding obligation of the Client enforceable against the Client in accordance
with its terms, except as may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights in general and
subject to the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(b) The Custodian represents and warrants that (i) the execution,
delivery and performance of this Agreement are within the Custodian's power and
authority and have been duly authorized by all requisite action (corporate or
otherwise) of the Custodian (ii) this Agreement constitutes the legal, valid and
binding obligation of the Custodian enforceable against the Custodian in
accordance with its terms, except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general and
subject to the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law) and (iii) it will maintain
insurance coverage reasonably comparable to the insurance coverage in place as
of the date of this Agreement, as described in Exhibit B hereto.
15. Standard of Care; Indemnification. (a) The Custodian shall be
responsible for the performance of only such duties as are set forth in this
Agreement or contained in Authorized Instructions given to the Custodian which
are not contrary to the provisions of any relevant law or regulation. The
Custodian shall be liable to the Client for any loss, liability or expense
incurred by the Client in connection with this Agreement to the extent that any
such loss, liability or expense results from the negligence or willful
misconduct of the Custodian or any Subcustodian.
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(b) The Client acknowledges that the Property may be physically held
outside the United States. The Custodian shall not be liable for any loss,
liability or expense resulting from events beyond the reasonable control of the
Custodian or of a Subcustodian, including, but not limited to, force majeure.
(c) In addition, the Client shall indemnify the Custodian and
Subcustodians and any nominee for, and hold each of them harmless from, any
liability, loss or expense (including attorneys' fees and disbursements)
incurred in connection with this Agreement, including without limitation, (i) as
a result of the Custodian having acted or relied upon any Authorized
Instructions or (ii) arising out of any such person acting as a nominee or
holder of record of Securities except to the extent such loss, liability or
expenses results from the Custodian's or its Subcustodian's own negligence or
wilful misconduct of the Custodian.
16. Fees; Liens. The Client shall pay to the Custodian from time to
time such compensation for its services pursuant to this Agreement as may be
mutually agreed upon as well as the Custodian's out-of-pocket and incidental
expenses. The Client shall hold the Custodian harmless from any liability or
loss resulting from any taxes or other governmental charges, and any expenses
related thereto, which may be imposed or assessed with respect to the Accounts
or any Property held therein. The Custodian is, and any Subcustodians are,
authorized to charge the Accounts for such items and the Custodian shall have a
lien, charge and security interest on any and all Property for any amount owing
to the Custodian from time to time under this Agreement.
17. Termination. This Agreement may be terminated by the Client or the
Custodian by 60 days written notice to the other, sent by registered mail. If
notice of termination is given, the Client shall, within 30 days following the
giving of such notice, deliver to the Custodian a statement in writing
specifying the successor custodian or other person to whom the Custodian shall
transfer the Property. In either event, the Custodian, subject to the
satisfaction of any lien it may have, shall transfer the Property to the person
so specified. If the Custodian does not receive such statement the Custodian, at
its election, may transfer the Property to a bank or trust company established
under the laws of the United States or any state thereof and qualified to serve
as the custodian for a registered investment company under Section 17(f) of the
Act to be held and disposed of pursuant to the provisions of this Agreement or
may continue to hold the Property until such a statement is delivered to the
Custodian. In such event the Custodian shall be entitled to fair compensation
for its services during such period as the Custodian remains in possession of
any Property and the provisions of this Agreement relating to the duties and
obligations of the Custodian shall remain in full force and effect; provided,
however, that the Custodian shall have no obligation to settle any transactions
in Securities for the Accounts. The provisions of Sections 15 and 16 shall
survive termination of this Agreement.
18. Investment Advice. The Custodian shall not supervise, recommend or
advise the Client relative to the investment, purchase, sale, retention or other
disposition of any Property held under this Agreement.
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19. Confidentiality. (a) The Custodian, its agents and employees shall
maintain the confidentiality of information concerning the Property held in the
Client's account, including in dealings with affiliates of the Custodian. In the
event the Custodian or any Subcustodian is requested or required to disclose any
confidential information concerning the Property, the Custodian shall, to the
extent practicable and legally permissible, promptly notify the Client of such
request or requirement so that the Client may seek a protective order or waive
any objection to the Custodian's or such Subcustodian's compliance with this
Section 19. In the absence of such a waiver, if the Custodian or such
Subcustodian is compelled, in the opinion of its counsel, to disclose any
confidential information, the Custodian or such Subcustodian may disclose such
information to such persons as, in the opinion of counsel, is so required.
(b) The Client shall maintain the confidentiality of, and not provide
to any third parties absent the written permission of the Custodian, any
computer software, hardware or communications facilities made available to the
Client or its agents by the Custodian.
20. Notices. Any notice or other communication from the Client to the
Custodian, unless otherwise provided by this Agreement or the Client Services
Guide, shall be sent by certified or registered mail to Chase Manhattan Bank,
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 00000, Attention: President, and any
notice from the Custodian to the Client is to be mailed postage prepaid,
addressed to the Client at the address appearing below, or as it may hereafter
be changed on the Custodian's records in accordance with written notice from the
Client.
21. Assignment. This contract may not be assigned by either party
without the prior written approval of the other.
22. Miscellaneous. (a) This Agreement shall bind the successors and
assigns of the Client and the Custodian.
(b) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to its conflicts
of law rules and to the extent not preempted by federal law. The Custodian and
the Client hereby irrevocably submit to the exclusive jurisdiction of any New
York State court or any United States District Court located in the State of New
York in any action or proceeding arising out of this Agreement and hereby
irrevocably waive any objection to the venue of any such action or proceeding
brought in any such court or any defense of an inconvenient forum.
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In witness whereof, the parties hereto have set their hands as of the
date first above written.
XANTHUS FUND L.L.C.
By: ______________________
Name:
Title: Manager
Address for record:
CIBC Xxxxxxxxxxx Tower
One World Financial Center
31st Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Accepted:
The Chase Manhattan Bank
By___________________________
Authorized Signature
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