Rev. 2/94 2.CUS
0000.xx
Securities, Trust & Information Services
(GCIC -
Brussels)
Global Custody Agreement
Agreement dated as of _______, 1995 between Xxxxxx Guaranty
Trust
Company of New York (the "Custodian"), acting through its
office at 00 xxxxxx xxx Xxxx, Xxxxxxxx, Xxxxxxx, and
Consulting Group Capital Markets Funds (the "Client").
Whereas, the Client desires to arrange for the custody of
certain of its assets and the provision of related services
by the Custodian;
Now, Therefore, in consideration of the mutual agreements
contained herein, the Custodian and the Client agree as
follows:
1. Definitions. The following terms, as used herein, shall
have the following meanings:
"Authorized Instruction" means (i) a written, oral or
electronic communication accepted by the Custodian in good
faith that has been transmitted subject to the Security
Procedures agreed upon in writing by the Custodian and the
Client or (ii) any other written, oral or electronic
communication that the Custodian believes in good faith to
have been given by an Authorized Person.
"Authorized Persons" means those individuals who have been
designated by or duly authorized by the Client pursuant to
necessary corporate or other action (which shall be
evidenced by appropriate documentation delivered to the
Custodian) to act on behalf of the Client in connection with
this Agreement. Such persons shall continue to be
Authorized Persons until such time as the Client has
delivered to the Custodian appropriate documents revoking
the authority of such persons.
"Cash" has the meaning set forth in Section 5.
"Cash Account" means a current account (which may be divided
into a number of subaccounts, denominated in U.S. dollars,
Belgian francs or any other currency or Composite Currency
Unit acceptable to the Custodian) opened by the Custodian on
its books in the name of the Client.
"Communication Products" has the meaning set forth in
Section 28.
"Composite Currency Units" means the European Currency Unit
("ECU"), the Special Drawing Right ("SDR") or another
composite unit consisting of the aggregate of specified
amounts of specified currencies, as such ECU, SDR or other
unit may be constituted from time to time.
"Xxxxxx Affiliate" means any office or branch of Xxxxxx
Guaranty Trust Company of New York ("Xxxxxx") and any other
entity that directly, or indirectly through one or more
intermediaries, controls Xxxxxx or that is controlled by or
is under common control with Xxxxxx.
"Securities Account" means any securities account opened by
the Custodian on its books in the name of the Client.
"Securities Depository" means any securities depository,
bookentry system or clearing system used by the Custodian
from time to time in accordance with Section 4(e) hereof.
"Security" means any share, stock, bond, debenture, note,
certificate of indebtedness, warrant or other security or
financial instrument acceptable to the Custodian (whether
represented by a certificate or by a book-entry on the
records of the issuer or other entity responsible for
recording such book-
entries) that is from time to time held for the account of
the Client directly, or indirectly through a Subcustodian or
Securities Depository, by the Custodian pursuant to this
Agreement.
"Security Procedure" means, for any specified method of
communication, a procedure agreed upon in writing by the
Custodian and the Client for the purpose of verifying that
an Authorized Instruction given pursuant to such method of
communication is that of the Client or detecting error in
the transmission or the content of such Authorized
Instruction. A Security Procedure may require the use of
algorithms or other codes, identifying words or numbers,
encryption, callback procedures, or similar security
devices.
"Subcustodian" means any bank or other institution (other
than a Securities Depository) used by the Custodian to hold
Securities from time to time in accordance with Section 4(e)
hereof.
2 (a). Representations, Warranties and Covenants of the
Client. The Client represents and warrants that the
execution, delivery and performance by the Client of this
Agreement (i) are within the Client's corporate, trust or
other constitutive powers; (ii) have been duly authorized by
all necessary corporate, trust or other appropriate action
under its organizational documents; (iii) require no action
by or in respect of, or filing with, any governmental body,
agency or official (including without limitation any
exchange control approvals) other than those set forth in
Appendix B under "Consents and Filings", which have been
duly taken or made or will be duly taken or made as and when
required; and (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation
or of the organizational documents of the Client or of any
agreement, judgment, injunction, order, decree or other
instrument binding upon the Client. In addition, the Client
represents and warrants that each of the statements set
forth in Appendix B under "Additional Information" is true
and correct. The Client represents, warrants and covenants
that the Custodian shall be entitled to deal with all
Securities free of any proprietary or equitable interest of
any person or entity (other than interests of the Client and
interests of the Custodian, Subcustodians and Securities
Depositories that are created by this Agreement). The
Client agrees to inform the Custodian immediately if any
statement set forth in this Section 2 or in Appendix B
ceases to be true and correct as of any date after the date
hereof.
2(b). Massachusetts Business Trust - Limitation of
Liability. The Client and the Custodian agree that the
obligations of the Client under this Agreement shall not be
binding upon any of the Trustees, shareholders, nominees,
officers, employees or agents, whether past, present or
future, of the Client, individually, but are binding only
upon the assets and property of the Client, as provided in
the Declaration and Agreement of Trust. The execution and
delivery of this Agreement have been authorized by the
Trustees of the Client, and signed by an authorized officer
of the Client, acting as such, and neither such
authorizationby such Trustees nor such execution and
delivery by such officer shall be deemed to have been made
by any of them or any shareholder of the Client pesonally,
but shall bind only the assets and property of the Client as
provided in the Master Trust Agreement.
3. Securities Accounts. The Client hereby establishes with
the Custodian one or more Securities Accounts, which shall
contain,
in the manner and on the terms specified herein, the
Client's Securities.
4. Terms of Custody.
(a) Authority to Hold Securities. Subject to the terms and
conditions of this Agreement, the Client hereby authorizes
the Custodian to hold any Securities received from time to
time for the account of the Client. The Custodian may, at
its sole discretion, hold the Securities directly or
indirectly through one or more Subcustodians or Securities
Depositories. Securities held indirectly through any
Subcustodian shall be held subject to the terms and
conditions of the Custodian's agreement with such
Subcustodian. Securities held indirectly through any
Securities Depository shall be held subject to the terms of
any agreement between the Custodian or Subcustodian and such
Securities Depository and to the rules and terms and
conditions of such Securities Depository.
(b) Fungibility. The Client agrees that all Securities
held by the Custodian directly, or indirectly through any
Subcustodian or Securities Depository, shall be subject to
the provisions of the Belgian Royal Decree No. 62 of
November 10, 1967, as amended. In accordance with the Royal
Decree, all Securities of any issue shall be treated as
fungible with all other securities of the same issue held by
the Custodian directly, or indirectly through any
Subcustodian or Securities Depository. Therefore, the
Client shall have no right to any specific securities of an
issue but shall instead be entitled, subject to applicable
laws and regulations and to the terms of this Agreement, to
transfer, deliver or repossess from the Custodian an amount
of securities of such issue that is equivalent to the amount
of such securities credited to a Securities Account, without
regard to the certificate numbers (or other identifying
information) of the securities originally deposited, and the
Custodian's obligation to the Client with respect to such
Securities shall be limited to effecting such transfer,
delivery or repossession.
(c) Identification of Client's Interests. The Custodian
shall cause the Client's interest in any Securities held by
the Custodian directly, or indirectly through any
Subcustodian or Securities Depository, to be evidenced by a
credit to a Securities Account on the books of the
Custodian. The Custodian shall instruct each Subcustodian
to credit all Securities held by such Subcustodian directly,
or indirectly through a Securities Depository, to an account
of the Custodian on the books of such Subcustodian. The
Custodian shall instruct, or direct the relevant
Subcustodian to instruct, each Securities Depository to
credit all Securities held by such Securities Depository to
an account of the Custodian or the relevant Subcustodian on
the books of such Securities Depository. Securities may be
registered in the name of the Custodian's nominee or, as to
any Securities held by an entity other than the Custodian,
in the name of such entity's nominee. The Client agrees to
hold any such nominee harmless from any liability as a
holder of record of such Securities.
(d) Liens of Subcustodians and Securities Depositories.
Unless the Custodian has received Authorized Instructions to
the contrary, the Custodian shall hold Securities indirectly
through a Subcustodian or Securities Depository only if (i)
the Securities are not subject to any right, charge,
security interest, lien or claim of any kind in favor of
such Subcustodian or Securities Depository or the creditors
or operators of any of them, including a receiver or trustee
in bankruptcy or similar
authority, except for a claim of payment for the safe
custody or administration of the Securities or for funds
advanced on behalf of the Client by such Subcustodian or
Securities Depository and (ii) beneficial ownership of the
Securities is freely transferable without the payment of
money or value other than for safe custody or
administration.
(e) Selection of Subcustodians and Securities Depositories.
The list of Subcustodians and Securities Depositories used
by the Custodian as of the date hereof is listed on Appendix
A hereto. The Custodian reserves the right to add and delete
subcustodians and securities depositories to and from such
list from time to time by notice to the Client. The
Custodian agrees that, if it replaces the subcustodian or
securities depository used in any country with another
subcustodian or securities depository, it will not transfer
any of the Client's securities from the former subcustodian
or securities depository for such country to the replacement
subcustodian or securities depository for such country
without giving the Client at least 30 days' prior written
notice, during which time the Client may make arrangements
to have the Securities transferred to another Custodian if
it does not approve of the replacement.
5. Cash Account.
(a) The Client hereby establishes and shall maintain with
the Custodian a Cash Account to be used in connection with
transactions relating to the Securities. The collected
balance from time to time in the Cash Account shall
constitute "Cash". Any credit made to the Cash Account shall
be provisional and may be reversed if such payment is not
actually collected or received.
(b) Except as otherwise provided by law, the Cash Account
(including subdivisions maintained in different currencies,
including Composite Currency Units) shall constitute one
single and indivisible current account. Consequently, the
Custodian has the right, among others, of transferring the
balance of any subaccount of the Cash Account to any other
subaccount at any time and without prior notice.
(c) The Custodian may in accordance with customary practice
hold any currency (other than Belgian Francs) or Composite
Currency Unit in which any subdivision of the Cash Account
is denominated on deposit in, and effect transactions
relating thereto through, an account (a "Foreign Account")
with a Xxxxxx Affiliate or another bank in the country where
such currency is the lawful currency or in other countries
where such currency or Composite Currency Unit may be
lawfully held on deposit.
(d) The Custodian shall have no liability for any loss or
damage arising from the applicability of any law or
regulation now or hereafter in effect, or from the
occurrence of any event, which may affect the
transferability, convertibility, or availability of any
currency (other than Belgian Francs) or Composite Currency
Unit in the countries where such Foreign Accounts are
maintained and in no event shall the Custodian be obligated
to substitute another currency for a currency (including a
currency that is a component of a Composite Currency Unit)
whose transferability, convertibility or availability has
been affected by such law, regulation or event. To the
extent that any such law, regulation or event imposes a cost
or charge upon the Custodian in relation to the
transferability, convertibility, or availability of any such
currency or Composite Currency Unit, such cost or charge
shall be for the account of the Client. If pursuant to any
such
law or regulation, or as a result of any such event, the
Custodian cannot deal in any component currency of a
Composite Currency Unit or effect a particular transaction
in a Composite Currency Unit on behalf of the Client, the
Custodian may thereafter treat any account denominated in an
affected Composite Currency Unit as a group of separate
accounts denominated in the relevant component currencies.
(e) Transactions in a currency or Composite Currency Unit
shall be subject to the regulations laid down by the
exchange control authorities of Belgium and of the country
where such currency (or component currency) is the lawful
currency or where such currency or Composite Currency Unit
is held on deposit.
6. Instructions by the Client.
(a) Generally. The Client shall give an Authorized
Instruction with respect to Cash and Securities only to the
Custodian or to the Custodian's designee. The Client agrees
to be bound by all Authorized Instructions, whether or not
such instructions were duly authorized in accordance with
the Client's own procedures. The Custodian shall not be
required to follow any Authorized Instruction that would
violate any applicable law, decree, regulation or order of
any government or governmental body (including any court or
tribunal) or that would be contrary to any provision of this
Agreement.
(b) Payments. Payments shall be made by the Custodian, or
a Subcustodian at the direction of the Custodian, only to
the extent that sufficient Cash in the applicable currency
is available in the Cash Account or otherwise available
therefor and only (i) as specified by an Authorized
Instruction, (ii) as permitted by Sections 14 and 15 or
(iii) upon the termination of this Agreement as set forth in
Section 17 hereof. The Custodian may make payments, or
direct a Subcustodian to make payments, from time to time on
behalf of the Client when sufficient Cash in the applicable
currency is not available in the Cash Account or otherwise
available therefor, but neither the Custodian nor any
Subcustodian shall have any obligation to make such
payments. If any payments are made that result in an
overdraft in a particular currency, then such overdraft
shall be payable on demand by the Custodian and shall bear
interest for each day outstanding at the rate customarily
charged by the Custodian for overdrafts in such currency.
(c) Delivery of Securities. Any Securities held by a
Subcustodian shall be subject only to the instructions of
the Custodian and any Securities held by a Securities
Depository shall be subject only to the instructions of the
Custodian or the Subcustodian for which such Securities
Depository is acting. Securities shall be transferred,
exchanged, or delivered by the Custodian, or a Subcustodian
at the direction of the Custodian, only to the extent that
sufficient Securities are actually in the Securities Account
and available for delivery and only:
(i) as specified by an Authorized Instruction;
(ii) in exchange for or upon conversion into other
Securities or Cash pursuant to a plan of merger,
consolidation, reorganization, recapitalization or
readjustment;
(iii) upon the conversion of Securities pursuant to their
terms into other Securities;
(iv) as permitted by Sections 14 and 15; or
(v) upon the termination of this Agreement as set forth in
Section 17 hereof.
7. Corporate Events.
(a) Collections. Unless the Custodian has received an
Authorized Instruction to the contrary, the Custodian shall,
or shall instruct the appropriate Subcustodian to, collect
dividends, interest and other payments made and stock
dividends, rights and similar distributions made or issued
with respect to Securities and present for payment maturing
Securities and those called for redemption, in each case net
of any applicable taxes or other charges withheld by the
maker of such payment or distribution. Neither the
Custodian nor any Subcustodian shall have any obligation to
commence legal proceedings or to take other extraordinary
actions to collect any of the foregoing payments or
distributions.
(b) Rights Offerings. Promptly after the Custodian becomes
aware thereof, the Custodian shall notify the Client of any
rights offering by an issuer of Securities. If the Client
does not send an Authorized Instruction to the Custodian
regarding the exercise of rights under such offering by the
deadline set by the Custodian in such notice, then to the
extent permitted by applicable law and consistent with local
market practice, the Custodian or the applicable
Subcustodian shall sell such rights in the principal market
for such rights and deposit the proceeds of such sale in the
Cash Account.
(c) Partial Redemptions. Promptly after the Custodian
becomes aware thereof, the Custodian shall notify the Client
of the partial redemption of any Securities. If the
Custodian or any Subcustodian or Securities Depository holds
any Securities in which the Client has an interest as part
of a fungible mass, the Custodian or such Subcustodian or
Securities Depository may select the securities to
participate in partial redemptions, partial payments or
other actions affecting less than all securities of the
relevant class in any non-discriminatory manner that it
customarily uses to make such selection.
(d) Authority of Custodian. Unless the Custodian has
received an Authorized Instruction to the contrary, the
Custodian shall, or shall instruct the appropriate
Subcustodian to: (i) execute in the name of the Client such
ownership and other certificates as may be required to
obtain payment or exercise any rights in respect of any
Securities; (ii) accept and open all mail directed to the
Client in care of the Custodian or such Subcustodian; and
(iii) retain or dispose of fractional interests received by
the Custodian or such Subcustodian as a result of stock
dividends in accordance with local law and practice. With
respect to any corporate events not listed above, the
Custodian shall (in the absence of an Authorized Instruction
from the Client within any prescribed deadline) take any
action that it considers appropriate in the circumstances;
provided that the Custodian shall not be liable for the
consequences of any such action.
8. Reporting.
(a) Statements. The Custodian shall mail, or cause to be
mailed, or transmit electronically to the Client (or, with
prior written consent of the Client, make available
electronically) monthly statements of the Securities
Accounts and Cash Account. Such statements shall list all
Securities and Cash and specify
(i) whether the Securities are held directly by the
Custodian or indirectly through a Subcustodian or Securities
Depository and (ii) the amount of Cash held on deposit in
each currency. The Client agrees that each such statement
shall be binding on the Client 60 days after (a) in the case
of any statement sent by mail, it has been mailed by first
class mail, postage prepaid or (b) in the case of any
statement transmitted or made available electronically, it
has been transmitted or made available electronically to the
Client, unless the Client has theretofore notified the
Custodian in writing of any inaccuracy in such statement.
(b) Access to Records. The Custodian shall allow the
Client and its independent public accountants reasonable
access to the records of the Custodian relating to the
Securities and Cash as is required by the Client or its
accountants in connection with their examination of the
books and records pertaining to the affairs of the Client
and shall require each Subcustodian and Securities
Depository to grant such access to the Client and its
independent public accountants to the extent consistent with
applicable law and regulations. The Custodian has no
obligation to maintain any records for a period of more than
10 years. The Custodian shall have no obligation to require
any Subcustodian or Securities Depository to maintain
records for any specified period of time.
(c) Other Information. From time to time the Custodian may
provide additional reporting information to the Client on
terms and conditions agreed upon by the parties hereto in
writing. The additional information may include data
obtained from third parties, such as pricing valuation
information relating to the Securities. The Client agrees
that it shall not redistribute or resell data obtained by
the Custodian from third parties, except that it may provide
such data to the beneficial owners of the Securities as
recorded on the Client's books and records.
9. Taxes. The respective responsibilities of the Client
and the Custodian with respect to tax matters are set forth
in Appendix C hereto and incorporated by reference herein.
10. Responsibilities; Indemnification by the Custodian.
(a) Standard of Care. The Custodian shall use reasonable
care in the performance of its duties hereunder and shall
exercise the same degree of care with respect to the
Securities as it would with respect to its own securities.
The Custodian shall require each Subcustodian to use
reasonable care in the performance of its duties and to
exercise the same degree of care with respect to the
Securities as it would with respect to its own securities.
The Custodian shall be responsible to ensure that each
Subcustodian that is a Xxxxxx Affiliate performs in
accordance with the foregoing standard. The Custodian's
responsibility with respect to any Securities held by a
Subcustodian (other than a Xxxxxx Affiliate) or any carrier
of Securities acting for the Custodian or any Subcustodian
is limited to the failure on the part of the Custodian (or a
Subcustodian that is a Xxxxxx Affiliate) to exercise
reasonable care in the selection or retention of such
Subcustodian or carrier. The Custodian shall have no
responsibility for the selection or retention of any
Securities Depository or for the performance of any
Securities Depository.
(b) Insurance. The Custodian shall, and shall require each
Subcustodian to, maintain insurance coverage with respect to
the
Securities covering such risks and in such amounts as the
Custodian or such Subcustodian maintains with respect to
securities which the Custodian or such Subcustodian holds
for its own account and for the account of other customers.
(c) Indemnification by the Custodian and Subcustodians.
The Custodian shall indemnify the Client against, and hold
the Client harmless from, any loss or liability (including,
without limitation, the reasonable fees and disbursements of
counsel and other legal advisors, but excluding all losses
and liabilities of the types described in Section 11 hereof)
incurred by the Client by reason of the negligence (whether
through action or inaction) or willful misconduct of the
Custodian or any Subcustodian that is a Xxxxxx Affiliate in
connection with the services provided pursuant to this
Agreement or the applicable subcustodian agreement. The
Custodian shall require each Subcustodian that is not a
Xxxxxx Affiliate to indemnify the Custodian and the Client
against, and hold the Custodian and the Client harmless
from, any loss or liability (including, without limitation,
the reasonable fees and disbursements of counsel, but
excluding all losses and liabilities of the types specified
in Section 11) incurred by the Custodian or the Client by
reason of the negligence (whether through action or
inaction) or willful misconduct of such Subcustodian in
connection with the services provided by such Subcustodian
pursuant to the applicable subcustodian agreement.
11. Limitations on Responsibilities and Liabilities.
(a) Generally. The Custodian shall be responsible for the
performance of only those duties as are set forth herein or
contained in an Authorized Instruction that is not contrary
to the provisions of this Agreement.
(b) Consequential Damages. Under no circumstances shall
the Custodian or any Subcustodian be liable to the Client or
any other person for indirect, special or consequential
damages, even if the Custodian or such Subcustodian is
apprised of the likelihood of such damages.
(c) Corporate Actions. The Custodian shall not be liable
for any loss occasioned by the failure of the Custodian to
notify the Client of any payment of dividends or interest or
any redemption, rights offering or other distribution made
with respect to any Security or any other corporate action
taken or to be taken with respect to any Security if the
Custodian or a Subcustodian has not received notice of such
transaction directly from or on behalf of the issuer of such
Security or if such distribution or action was not included
in the reports of an internationallyrecognized investment
data service selected by the Custodian.
(d) Authorized Instructions. Neither the Custodian nor any
Subcustodian shall be liable for any action taken upon an
Authorized Instruction.
(e) Payment and Delivery Instructions. In some securities
markets, securities deliveries and payments therefor may not
be or are not customarily made simultaneously. Accordingly,
the Client agrees that, notwithstanding the Client's
instruction to deliver Securities against payment or to pay
for Securities against delivery, the Custodian or a
Subcustodian may make or accept payment for or delivery of
Securities at such time and in such form and manner as shall
be in accordance with relevant local law and practice or
with the customs prevailing in the relevant market among
securities dealers. The Client shall bear the risk that (i)
the recipient of Securities may fail to make
payment, return such Securities or hold such Securities or
the proceeds of their sale in trust for the Client and (ii)
the recipient of payment for Securities may fail to deliver
the Securities (such failure to include, without limitation,
delivery of forged or stolen Securities) or to return such
payment, in each case whether such failure is total or
partial or merely a failure to perform on a timely basis.
Neither the Custodian nor any Subcustodian shall be liable
to the Client for any loss resulting from any of the
foregoing events.
(f) Reversals. In some securities markets and cash
clearing systems, deliveries of securities and cash may be
reversed under certain circumstances. Accordingly, credits
of securities to a Securities Account and cash to the Cash
Account are provisional and subject to reversal if, in
accordance with relevant local law and practice, the
delivery of the security or cash giving rise to the credit
is reversed.
(g) Foreign Currency Risks. The Client shall bear all
risks of investing in Securities or holding Cash denominated
in a currency other than that of the Client's home
jurisdiction. Without limiting the foregoing, the Client
shall bear the risks that rules or procedures imposed by
Securities Depositories, exchange controls, asset freezes or
other laws or regulations shall prohibit or impose burdens
or costs on the transfer to, by or for the account of the
Client of Securities or Cash held outside the Client's
jurisdiction or denominated in a currency other than the
currency of the Client's home jurisdiction or the conversion
of Cash from one currency into another currency. The
Custodian shall not be obligated to substitute another
currency for a currency (including a currency that is a
component of a Composite Currency Unit) whose
transferability, convertibility or availability has been
affected by such law, regulation, rule or procedure.
Neither the Custodian nor any Subcustodian shall be liable
to the Client for any loss resulting from any of the
foregoing events.
(h) Force Majeure. Notwithstanding any other provision
contained herein, neither the Custodian nor any Subcustodian
shall be liable for any action taken, or any failure to take
any action required to be taken, hereunder or otherwise to
fulfill its obligations hereunder (including without
limitation the failure to receive or deliver securities or
the failure to receive or make any payment) in the event and
to the extent that the taking of such action or such failure
arises out of or is caused by war, insurrection, riot, civil
commotion, act of God, accident, fire, water damage,
explosion, mechanical breakdown, computer or system failure
or other failure of equipment, or malfunction or failures
caused by computer virus, failure or malfunctioning of any
communications media for whatever reason, interruption
(whether partial or total) of power supplies or other
utility of service, strike or other stoppage (whether
partial or total) of labor, any law, decree, regulation or
order of any government or governmental body (including any
court or tribunal), or any other cause (whether similar or
dissimilar to any of the foregoing) whatsoever beyond its
reasonable control.
(i) Delays. Except in the case of a failure by the
Custodian or a Xxxxxx Affiliate to exercise the standard of
care required by Section 10(a), the Custodian shall not be
liable for delays in carrying out payment instructions given
by the Client. In the event that a delay in the carrying
out of a payment instruction is caused by such a failure of
the Custodian or a Xxxxxx Affiliate, the liability of the
Custodian shall not exceed an interest equivalent for the
period from the day when the payment would have been carried
out, but for the negligence of the
Custodian or such Xxxxxx Affiliate, until the day when it is
actually carried out (excluding any portion of such period
during which the Custodian cannot carry out such
instructions as a result of any event referred to in Section
11(h)); provided that if the Client shall fail to report the
delay to the Custodian within 10 days from the date when the
payment would, but for the negligence of the Custodian or a
Xxxxxx Affiliate, have been made, then the Custodian shall
not be liable for an interest equivalent for more than a
total of 10 days.
(j) Client's Reporting Obligations. The Client shall be
solely responsible for compliance with any notification,
license or other requirement of any jurisdiction relating to
or affecting the Client's beneficial ownership of the
Securities, and neither the Custodian nor any Subcustodian
assumes liability for noncompliance with such requirements.
(k) No Investment Advice. Neither the Custodian nor any
Subcustodian or Xxxxxx Affiliate is under any duty to
provide the Client with investment advice or to supervise
its investments.
(l) Fraudulent Securities. Neither the Custodian nor any
Subcustodian shall have any liability for losses incurred by
the Client or any other person as a result of the receipt or
acceptance of fraudulent, forged or invalid Securities (or
Securities which are otherwise not freely transferable or
deliverable without encumbrance in any relevant market).
(m) Third Party Information. The Custodian shall have no
responsibility for the accuracy of any information provided
by the Custodian to the Client that has been obtained from
third parties pursuant to Section 7 or 8(c) of this
Agreement.
12. Use of Xxxxxx Affiliates.
(a) Executing Orders. The Custodian shall, in its sole
discretion and if permitted by applicable law, accept orders
from the Client for the purchase or sale of Securities and
either execute such orders itself or by means of Xxxxxx
Affiliates or brokers or other financial organizations of
its choice, subject to the fees and commissions in effect
from time to time. The Custodian shall not be responsible
for any act or omission, or for the solvency, of any broker
or other financial organization so selected to effect any
transaction for the account of the Client. When instructed
to buy or sell Securities for which the Custodian or a
Xxxxxx Affiliate acts as a dealer, the Custodian may buy or
sell such Securities from or to either itself, as principal,
or such Xxxxxx Affiliate.
(b) Disclosure to Xxxxxx Affiliates. Notwithstanding the
provisions of Section 26 hereof, the Custodian may disclose
to any Xxxxxx Affiliate details with respect to the
Securities and the transactions effected hereunder. Such
disclosure shall be for the purpose of identifying banking,
securities and financial services that Xxxxxx Affiliates may
be able to provide to the Client.
(c) Sub-Contracting. The Client hereby agrees that the
Custodian may arrange with any Xxxxxx Affiliate to perform
on behalf of the Custodian any act required to be performed
by the Custodian hereunder.
13. Fees. The Client agrees to pay the Custodian as
compensation for the services provided hereunder a fee
computed
at rates determined by the Custodian from time to time and
communicated to the Client in advance, as well as all
assessments, charges and expenses (including legal expenses
and attorney's fees associated with enforcing the
Custodian's rights hereunder) incurred by the Custodian in
connection with this Agreement.
14. Right to Debit and Set-Off. The Custodian has the
right to debit any subaccount of the Cash Account for any
amount payable by the Client in connection with any and all
obligations of the Client to the Custodian, whether or not
relating to or arising under this Agreement. In addition to
the rights of the Custodian under applicable law and other
agreements, at any time when the Client shall not have
honored any and all of its obligations to the Custodian,
whether or not relating to or arising under this Agreement,
the Custodian shall have the right without notice to the
Client to retain or set-off, against such obligations of the
Client, any assets the Custodian or any Xxxxxx Affiliate may
directly or indirectly hold for the account of the Client,
and any obligations (whether matured or unmatured) that the
Custodian or any Xxxxxx Affiliate may have to the Client in
any currency or Composite Currency Unit, including time
deposits and all assets credited to any Securities Account.
Any such asset of, or obligation to, the Client may be
transferred among the Custodian and any Xxxxxx Affiliates in
order to effect the above rights.
15. Security Interests. In order to secure the prompt and
complete payment when due of any and all obligations of the
Client to the Custodian, now outstanding or which may be
outstanding at any time in the future, whether or not
relating to or arising out of this Agreement, the Client
hereby pledges and grants to the Custodian a security
interest in (i) all of the Client's right, title and
interest in and to all Cash Accounts, including any credit
or debit balance which now appears or may at any time in the
future appear in any currency or Composite Currency Unit
subaccount of a Cash Account, (ii) all of the Client's
right, title and interest in and to all time deposit
accounts and notice accounts that the Client may open from
time to time with the Custodian, (iii) all of the Client's
right, title and interest in and to all Securities Accounts
and the amount of all securities which are now or at any
time in the future shall be standing to the credit of a
Securities Account (clauses (i), (ii) and (iii) of this
Section 15 being referred to collectively herein as the
"Collateral"), (iv) all amounts of cash, securities or other
property or countervalue received or to be received with
respect to or in exchange for any and all of the then
existing Collateral which are, or are intended, to be
credited to a Cash Account or a Securities Account and (v)
to the extent not covered by the foregoing, all proceeds,
product, offspring, rents or profits of any or all of the
foregoing (whether acquired before or after the commencement
of any bankruptcy or liquidation proceeding by or in respect
of the Client) which are, or are intended to be credited to
a Cash Account or a Securities Account. All time deposit
accounts and notice accounts shall be deemed constituted for
an indefinite period, even though the Client and the
Custodian may agree from time to time that interest thereon
will be paid on specified dates rather than only at final
maturity. The foregoing security interests are granted as
security only and shall not subject the Custodian to, or
transfer or in any way affect or modify, any obligation or
liability of the Client with respect to any of the
Collateral or any transaction in connection therewith. The
Client authorizes the Custodian to perform all acts which
the Custodian, in its sole discretion, deems necessary or
desirable
to perfect and preserve its security interests and rights
under this Section 15. Upon any breach by the Client of its
obligations hereunder, the Custodian shall be entitled to
exercise all of the remedies available to a secured creditor
under applicable law.
16. Indemnification by the Client. The Client agrees to
indemnify the Custodian and each Subcustodian and to hold
the Custodian and each such Subcustodian harmless from any
loss or liability (including, without limitation, the
reasonable fees and disbursements of counsel and other legal
advisors) incurred by the Custodian or such Subcustodian in
rendering services hereunder or in connection with any
breach of the terms of this Agreement by the Client, except
such loss or liability which results from the Custodian's or
such Subcustodian's failure to exercise the standard of care
required by Section 10(a) hereof.
17. Termination. This Agreement may be terminated by the
Custodian or the Client following receipt by the other party
of not less than 60 days' prior written notice thereof;
provided that such termination may be immediate if the other
party shall be in breach of its obligations hereunder or
shall become the subject of bankruptcy, insolvency,
reorganization, receivership or other similar proceedings.
If notice of termination is given by the Custodian, then the
Client shall, within 60 days following receipt of such
notice, specify in an Authorized Instruction the names of
the persons to whom all Securities and Cash shall be
delivered or paid. In such case, the Custodian shall,
subject to the payment of amounts owed to it pursuant to
Sections 6(b) and 13 hereof, deliver such Securities and
Cash, and instruct each Subcustodian to deliver any
Securities or Cash held by such Subcustodian, to the persons
so specified. If within 60 days following the receipt of a
notice of termination by the Custodian, the Custodian does
not receive from the Client the names of the persons to whom
such Securities and Cash shall be delivered, the Custodian,
at its election, may deliver such Securities and Cash, and
instruct each Subcustodian holding any Securities or Cash to
deliver such Securities and Cash, to a bank or a trust
company doing business in the state or country where such
Securities and Cash were held. Securities or Cash so
delivered shall be held and disposed of pursuant to the
provisions of this Agreement or an Authorized Instruction or
may be continued to be held until the names of such persons
are delivered to the Custodian. If notice of termination is
given by the Client, the Custodian shall, subject to the
payment of all amounts owed to it pursuant to Sections 6(b)
and 13 hereof, deliver such Securities and Cash, and
instruct each Subcustodian holding any Securities or Cash to
deliver such Securities or Cash, to the persons specified in
an Authorized Instruction. If this Agreement is terminated
by the Custodian or the Client, but the Custodian or a
Xxxxxx Affiliate continues to provide other services to the
Client in connection with which the Client uses
Communication Products, then the provisions of Sections 27
and 28 hereof shall survive the termination of this
Agreement until the time that no such other services
continue to be provided by the Custodian or a Xxxxxx
Affiliate to the Client or until otherwise terminated in
writing by the Client or the Custodian. The provisions of
Sections 20, 24, 26 and Appendix G hereof and the indemnity
provisions of this Agreement and the provisions limiting the
liabilities of the Custodian and the Subcustodians shall
survive the termination of this Agreement (including any
subsequent termination of Sections 27 and 28 hereof).
18. Notices. Except as otherwise specified herein, any
notice or other communication to the Custodian or Client is
to be addressed to the respective party as set forth in
Appendix D hereto or in such other manner as may be
specified by the one party to the other in writing from time
to time. Unless otherwise specified herein, notices shall
be effective when received. If any Authorized Instruction
is given to the Custodian orally, then the Custodian's
record of such instruction shall constitute conclusive
evidence of the contents of such instruction,
notwithstanding any conflicting written confirmation or
record of such instruction provided by the Client.
19. Amendments and Waivers. Any provision of this
Agreement (including Appendices B through G hereto) may be
amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Client and the Custodian.
20. Claims. Any claim arising out of or related to this
Agreement must be brought no later than one year after such
claim has accrued.
21. Successors and Assigns; Governing Law; Jurisdiction.
This Agreement shall bind the successors and assigns of the
Custodian and the Client. Except as otherwise provided by
the terms of this Agreement, neither the Custodian nor the
Client may assign any of its rights or obligations under
this Agreement without the prior written consent of the
other party. This Agreement shall be governed by and
construed in accordance with the law of State of New York
except that the provisions set forth in Sections 4(b) and 15
shall be governed by the law of Belgium. The Client hereby
submits to the non-exclusive jurisdiction of any any federal
or state court in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or
the transactions contemplated hereby. The Client hereby
irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter
have to the laying of venue of any such proceeding brought
in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient
forum. The Client and the Custodian each hereby irrevocably
waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
22. Counterparts. This Agreement may be signed in any
number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
23. Headings. The section headings used herein are for
information only and shall not affect the interpretation of
any provision of this Agreement.
24. Evidence. The Custodian's books and records (whether
on paper, microfilm, microfiche, by electronic or magnetic
recording, or any other mechanically reproducible form or
otherwise) shall be deemed to constitute, in the absence of
manifest error, sufficient evidence of the facts stated
therein and of any obligations of the Client to the
Custodian.
25. Integration. This Agreement constitutes the entire
agreement between the parties hereto as it pertains to the
provision of global custody services and supersedes any and
all prior agreements and understanding, oral or written,
relating to the subject matter hereof.
26. Confidentiality. Notwithstanding any other provision
herein, the Custodian may disclose the Client's name,
address and securities position and other information to
such persons and to such an extent as required by law
(including, but not limited to, article 28 of the Belgian
Law of December 4, 1990 relating to securities transactions
suspected of constituting market manipulation, xxxxxxx
xxxxxxx and other breaches of financial regulations), the
rules of any stock exchange or regulatory or self-regulatory
organization or any order or decree of any court or
administrative body that is binding on the Custodian or any
Subcustodian or Securities Depository or the terms of the
organizational documents of the issuer of any Security or
the term of any Security itself.
27. Security Procedures. The Client acknowledges that it
has been fully informed of the protections and risks
associated with the various methods of communication for
transmitting Authorized Instructions to the Custodian. The
Custodian has recommended that the Client transmit
Authorized Instructions to the Custodian using one or more
specified methods of communication and has recommended a
type of Security Procedure for each such method. The Client
hereby agrees that the Security Procedure actually agreed
between the Client and the Custodian shall be deemed
commercially reasonable even if such Security Procedure
offers less protection than the Security Procedure
recommended by the Custodian. If the Client elects to
transmit Authorized Instructions to the Custodian by a
method of communication for which no Security Procedure has
been agreed, the Client agrees to be bound by any such
Authorized Instruction that the Custodian believes in good
faith to have been given by an Authorized Person. The
Client shall (i) not disclose, or permit any Authorized
Person to disclose, except on a "need to know" basis, any
aspects of any Security Procedure, (ii) notify the Custodian
immediately if the confidentiality of any Security Procedure
is compromised and (iii) act to prevent the Security
Procedures from being further compromised. The Client shall
designate one or more persons, as identified in Appendix E,
to receive Security Procedure materials from the Custodian.
The Client may amend Appendix E from time to time upon seven
days' prior written notice to the Custodian in accordance
with Section 18 of this Agreement.
28. License. The Custodian hereby grants to the Client a
personal, nontransferable and nonexclusive license to use,
for its internal purposes only, the respective number of
copies of any hardware, firmware, microcode and software set
forth in Appendix F or hereafter identified by the Custodian
in writing as communication products (the "Communication
Products"), for the respective terms set forth in Appendix F
and at the respective locations set forth in Appendix F,
solely in connection with transmitting and receiving
electronic communications to and from the Custodian in
connection with this Agreement. The Client hereby
acknowledges and agrees that this license is subject to the
terms and conditions set forth in Appendix G.
29. Severability. In the event any of the terms or
provisions of this Agreement shall be held to be
unenforceable, the
remaining terms and provisions shall be unimpaired and the
unenforceable term or provision shall be replaced by such
enforceable term or provision as comes closest to the
intention underlying the unenforceable term or provision.
In Witness Whereof, the parties have caused this Agreement
to
be duly executed by their respective authorized
representatives as of the day and year first above written.
Xxxxxx Guaranty Trust Company of Xxxxx Xxxxxx
Precious Metals and
New York Minerals Fund Inc
By: ______________________________ By:
______________________________
Title: ______________________________ Title:
______________________________
Appendix A
Global Custody Network
Country Subcustodian
Depository1
Argentina Xxxxxx Guaranty Trust Co.
Caja de Valores
of New York - Buenos Aires
Office
Australia ANZ Banking Group
Austraclear
Austria Creditanstalt-Bankverein
OeKB-WSB (Wertpapiersammelbank bei der Oesterreichischen
Kontrollbank AG)
Belgium Xxxxxx Guaranty Trust Co.
CIK (Caisse Interprofessionnelle
of New York - Brussels Office
de Depots et de Virements de Titres)
Euroclear Clearance System Limited
Brazil Xxxxxx Guaranty Trust Co.
BOVESPA (Bolsa de Valores de Sao Paulo;
of New York - Sao Paulo Office
equities)
BVRJ
(Bolsa de Valores de Rio de Janeiro; equities)
CETIP
(Central de Custodia e Liquidacao Financiera de Titulos;
corporate bonds)
SELIC
(Sistema Especial de Liquidacao e Custodia; government
securities)
Canada Canadian Imperial Bank CDS
(Canadian Depository for
of Commerce
Securities)
Chile Citibank, N.A.
People's Republic of China - Hongkong and Shanghai
Banking
Shanghai and Shenzhen Corporation
Denmark Den Danske Bank VP
(Vaerdipapircentralen; Danish Securities Centre)
Finland Union Bank of Finland
France Xxxxxx Guaranty Trust Co.
SICOVAM (Societe Interprofessionnelle
of New York - Paris Office
Pour La Compensation des Valeurs
Mobilieres)
Germany X.X. Xxxxxx GmbH DKV
(Deutscher Kassenverein)
Greece National Bank of Greece S.A.
Hong Kong Hongkong and Shanghai Banking
CCASS
(Central Clearing and Settlement
Corporation
System)
Xxxxxxx Xxxxxxxx Xxxxxxxx Xx
Xxxxx Xxxx Xxxx and Shanghai
Banking
Corporation
Indonesia Hongkong and Shanghai Banking
Corporation
Ireland Allied Irish Banks PLC
Italy Xxxxxx Guaranty Trust Co.
Monte Titoli S.p.A.
of New York - Milan Office
Japan The Fuji Bank, Ltd.
JASDEC (Japanese Securities
Depository Center)
JSA
(Japan Securities Agency)2
Korea Bank of Seoul
KSSC (Korea Securities Settlement Corporation)
Luxembourg Banque Internationale a
CEDEL (Central de Livraison
Luxembourg, S.A.
des Valeurs Mobilieres)
Malaysia Hongkong and Shanghai Banking
SCANS
(Securities Clearing Automated
Corporation
Network Services)
Mexico Citibank, N.A.
Indeval
Netherlands Bank Van Haften
Labouchere
NECIGEF (Nederlands Centraal Instituut Voor
Giraal Effectenverkeer BV)
New Zealand ANZ Banking Group Ltd.
Austraclear
Norway Den Norske Bank VPS
(Verdipapirsentralen; Norwegian Registry of
Securities) Philippines
Hongkong and Shanghai Banking
Corporation
Portugal Banco Espirito Santo
e Comercial de Lisboa
Singapore Development Bank of Singapore
(CDP)
Central Depository Pte
Spain Xxxxxx Guaranty Trust Co.
of New York - Madrid Office
Banco de Santander
Sri Lanka Hongkong and Shanghai Banking
Corporation
Sweden Skandinaviska Enskilda Banken
VPC (Vaerdepappercentralen;
Securities Register Centre)
Switzerland Xxxxxx Guaranty Trust Co.
SEGA (Schweizerische
of New York - Zurich Office
Effekten - Giro AG)
Taiwan Hongkong and Shanghai Banking
Corporation
Thailand Hongkong and Shanghai Banking
Corporation
Turkey3 Citibank, N.A.
Ottoman Bank
United Kingdom Xxxxxx Guaranty Trust Co.
TALISMAN (Transfer, Accounting and
of New York - London Office
Lodgement for Investors Stock Management
for
Jobbers) - Sepon Limited
CGO
(Central Gilts Office)
CMO
(Central Money Markets Office)
ESO
(European Settlements Office)
United States Xxxxxx Guaranty Trust Co.
The Depository Trust Co.
of New York
The
Participants Trust Co.
Venezuela Citibank, N.A.
Appendix B
Consents and Filings
Additional Information
Appendix C
Tax Matters
The provisions of this Appendix C shall govern the rights,
responsibilities, duties and liabilities of the Client and
the
Custodian with respect to the payment or withholding of all
taxes, assessments, duties or other governmental charges
(including any interest or penalty thereon or with respect
thereto) imposed by any governmental authority upon or with
respect to (i) any Cash, (ii) any Securities, and any
distributions with respect thereto, and (iii) the purchase,
sale, loan or other transfer of any Security by the
Custodian,
any Subcustodian or any Securities Depository on behalf of
the
Client and any proceeds or other income from such a sale,
loan
or other transfer (any such tax, assessment, duty or other
governmental charge being referred to herein as a "Tax").
All
capitalized terms not defined herein shall have the meanings
assigned to them in the Global Custody Agreement.
1. As further provided in this Appendix C, the Client shall
be
liable for all Taxes and shall indemnify and hold harmless
the
Custodian, each Subcustodian and each Securities Depository
for
the amount of any Tax that the Custodian or such
Subcustodian
or Securities Depository is required under applicable laws
(whether by assessment or otherwise) to pay on behalf of, or
in
respect of income earned by or payments or distributions
made
to or for the account of, the Client (including any payment
of
Tax required by reason of an earlier failure to withhold).
2. The Custodian shall, and shall instruct each
Subcustodian
and
Securities Depository to, withhold the amount of any Tax
which
the Custodian or such Subcustodian or Securities Depository
is
required to withhold under applicable law upon collection
(on
behalf of the Client pursuant to an Authorized Instruction)
of
(i) any dividend, interest or other cash distribution made
with
respect to any Security, (ii) any stock dividend or
distribution of rights, warrants or other property with
respect
to any Security and (iii) any proceeds or income from the
sale,
loan or other transfer of any Security. The Custodian
shall,
and shall instruct each Subcustodian and Securities
Depository
to, timely remit the amount of any such tax withheld to the
appropriate governmental authority in the manner required by
applicable law. The Custodian has, and is authorized to
grant
to each Subcustodian and Securities Depository, complete
discretion to determine the amount of any Tax which the
Custodian or such Subcustodian or Securities Depository is
required to withhold from any distribution, proceeds or
income
under any applicable law.
3. In the event that (A) the Custodian or any Subcustodian
or
Securities Depository is required under applicable law to
pay
any Tax on behalf of the Client (including a payment due by
reason of an earlier failure to withhold such Tax) or (B)
the
Custodian or any Subcustodian or Securities Depository is
required under applicable law to withhold or otherwise pay
any
Tax from or with respect to any distribution or payment in
property other than cash which is collected by the Custodian
or
such Subcustodian or Securities Depository (on behalf of the
Client pursuant to an Authorized Instruction), the Custodian
shall be authorized to withdraw Cash from any subaccount of
the
Cash Account in the amount and currency required to pay such
Tax and to use such Cash, or to remit such Cash to the
appropriate Subcustodian or Securities Depository for the
timely payment of such Tax in the manner required by
applicable
law. If the Cash Account does not contain sufficient Cash
in
the appropriate currency to pay such Tax, the Custodian
shall
be authorized to withdraw Cash of any other currency from
any
subaccount of the Cash Account in an amount which, when
converted to the appropriate currency at the exchange rate
prevailing on the date of withdrawal, is sufficient to
enable
the Custodian or such Subcustodian or Securities Depository
to
pay such Tax. If the aggregate amount of Cash in all
subaccounts of the Cash Account is not sufficient to pay
such
Tax, the Custodian shall promptly notify the Client of the
additional amount of Cash (in the appropriate currency)
required, and the Client shall deposit such additional
amount
in the Cash Account promptly after receipt of such notice
for
use by the Custodian as specified herein. In the event that
the Custodian or any Subcustodian or Securities Depository
is
required to pay any such Tax prior to the deposit by the
Client
of an additional amount as required hereunder, the Custodian
shall be authorized to withdraw such additional amount
(following deposit thereof) from any subaccount of the Cash
Account for payment to its own account or the account of
such
Subcustodian or Securities Depository in satisfaction of the
Client's indemnification obligation hereunder.
4. The information delivered to the Client each month
pursuant
to Section 8(a) of the Global Custody Agreement shall
include
the amount of each Tax (i) withheld by the Custodian or any
Subcustodian or Securities Depository from any payment
collected on behalf of the Client, (ii) withheld by the
payor
of any payment collected by the Custodian or any
Subcustodian
or Securities Depository on behalf of the Client or (iii)
paid
by the Custodian or any Subcustodian or Securities
Depository
on
behalf of the Client with Cash withdrawn from the Cash
Account
or otherwise obtained pursuant to paragraph 3 of this
Appendix
C, in each case during the period since the date of the
immediately preceding monthly report.
5. In the event that the Client is eligible, pursuant to
the
provisions of any tax treaty, for a reduced rate of, or
exemption from, any Tax which the Custodian or any
Subcustodian
or Securities Depository is otherwise required to withhold
or
pay on behalf of the Client under any applicable law, the
Custodian shall, or shall instruct such Subcustodian or
Securities Depository to, either withhold or pay such Tax at
such reduced rate or refrain from withholding or paying such
Tax, as appropriate; provided that the Custodian has
received
from the Client all documentary evidence of residence or
other
qualification for such reduced rate or exemption required to
be
received under such applicable law. As soon as practicable
following the execution of the Global Custody Agreement, the
Client shall notify the Custodian of the Client's
eligibility
for the benefits of any tax treaty between the Client's
country
of residence and the countries listed in Appendix A to the
Global Custody Agreement and to the extent possible, furnish
to
the Custodian all forms or other documentary evidence
required
under applicable law to establish such eligibility. The
Custodian shall, and shall instruct each Subcustodian and
Securities Depository to, withhold or pay any Tax at a
reduced
rate hereunder, or refrain from withholding or paying any
Tax,
only in reliance upon documentation furnished to the
Custodian
pursuant to this paragraph 5. The Custodian and each
Subcustodian and Securities Depository shall have no
responsibility for the accuracy or validity of any forms or
documentation provided by the Client to the Custodian
hereunder, and the Client hereby indemnifies and agrees to
hold
harmless the Custodian and each Subcustodian and Securities
Depository in respect of any liability arising from any
underwithholding or underpayment of any Tax which results
from
the inaccuracy or invalidity of any such forms or other
documentation.
6. In the event that the Custodian becomes aware that any
person is required under applicable law of any country to
withhold any Tax from any payment collected by the Custodian
or
any Subcustodian or Securities Depository on behalf of the
Client, and the Client has previously provided to the
Custodian
pursuant to paragraph 5 of this Appendix C all forms or
other
documentary evidence required under applicable law to
establish
eligibility for an exemption from or reduced rate of such
withholding pursuant to any tax treaty between such country
and
the Client's country of residence, then the Custodian shall
furnish, or shall instruct such Subcustodian or Securities
Depository to furnish, to the extent permissible and
effective
to establish such eligibility under applicable law, such
forms
or other documentary evidence on behalf of the Client to the
person required to withhold such Tax. In the event that the
Custodian or such Subcustodian or Securities Depository is
not
permitted under applicable law to furnish the necessary
forms
or other documentary evidence on behalf of the Client, the
Custodian shall make reasonable efforts to notify the
Client,
reasonably promptly after it becomes aware of such
requirement,
that the Client is required under such law to furnish such
items to the person required to withhold such Tax. In the
event that (i) the Tax which any such person is required to
withhold is imposed under an applicable law of a country
other
than those listed in Appendix A to the Global Custody
Agreement
or (ii) the Custodian or an appropriate governmental
authority
or withholding agent has
determined that any forms or other documentation previously
provided to the Custodian pursuant to paragraph 5 of this
Appendix C are insufficient to establish the eligibility of
the
Client for a reduced rate of, or exemption from, withholding
of
any Tax imposed under the applicable law of a country listed
in
Appendix A to the Global Custody Agreement, the Custodian
shall
make reasonable efforts to so notify the Client reasonably
promptly after the Custodian becomes aware that such Tax is
required to be withheld.
7. In the event that (i) the Client is eligible pursuant to
the provisions of any tax treaty for a reduced rate of, or
exemption from, withholding of any Tax, which reduced rate
or
exemption is obtainable only by means of application to the
appropriate governmental authority for a refund of tax paid
or
withheld, or (ii) the Custodian or any Subcustodian or
Securities Depository withholds from any distribution,
proceeds
or income collected on behalf of the Client an amount which
is
subsequently determined to be greater than the amount
required
under applicable law to have been withheld, the Custodian
shall, or shall instruct the appropriate Subcustodian or
Securities Depository to, assist the Client, to the extent
permissible under applicable law, to obtain a refund of such
Tax from the appropriate governmental authority in the
amount
for which the Client is eligible.
Appendix D
Notices to the Custodian
Xxxxxx Guaranty Trust Company of New York, Brussels Office
00 xxxxxx xxx Xxxx
Xxxxxxxx 0000, Xxxxxxx
Attention: Securities Trust and
Information Services, Global
Custody
Facsimile No. 000-000-0000
Telephone No. 000-000-0000
Notices to the Client
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention Xxxxx Xxxxxxx
Appendix E
Persons Authorized by the Client to Receive Security
Procedure Materials
[To be provided by Client]
Appendix F
Communication Products
(To be provided)
Appendix G
Communication Products - Terms and Conditions
1. Misuse; Confidentiality; Copies. The Client shall not
transfer, sublicense, rent, lease, convey, translate,
convert
to another programming language, decompile, disassemble,
modify
or change any Communication Product for any purpose. The
Client shall not use any Communication Product in a manner
which would violate this license or infringe the proprietary
rights of the Custodian or others or violate the laws,
tariffs
or regulations of any country. The Client agrees not to
disclose to any other party and to keep confidential all of
the
Communication Products and all information contained in or
related to the Communication Products and related
documentation. The Client may make only one copy of each
licensed software Communication Product for backup purposes
in
support of its authorized use of the software. The Client
shall include any applicable copyright notice on any such
software backup. The Client is permitted to use each
licensed
copy of any Communication Product on only one computer or
local
area network at a time.
2. Compatible Products. The Client shall be responsible
for
obtaining and maintaining hardware, software and other
equipment and products that are compatible with the
Communication Products, as compatibility is defined by the
Custodian from time to time. The Custodian shall give the
Client reasonable advance notice of any changes in such
compatibility requirements.
3. Documentation. If available, the Custodian shall give
the
Client one copy of a user manual and related documentation
(the
"Documentation") for each licensed Communication Product.
The
Documentation is intended to be used for training and
informational purposes. The Documentation describes
Security
Procedures that the Client must comply with in using the
Communication Products. The Client shall immediately notify
the Custodian in writing if it believes any Security
Procedure
has been compromised or if any Communication Product fails
to
perform as described in the Documentation.
4. Installation. At its option, the Custodian shall either
install the Communication Products at the locations
specified
by the Client or shall furnish the Client with installation
instructions. From time to time, at its option, the
Custodian
shall either install new releases of the Communication
Products
or furnish the Client with installation instructions and
direct
the Client to install such new releases by itself. The
Client
agrees to allow the Custodian to install such new releases
or
to install such new releases by itself if directed to do so
by
the Custodian.
5. Returns, Repairs and Replacements. Upon the termination
of
this License with respect to any Communication Product, the
Client agrees to return all copies of such Communication
Product and related documentation to the Custodian. The
Client
agrees to pay any shipping charges incurred in connection
with
the return of any Communication Product to the Custodian for
replacement, update or upon termination of this License with
respect to such
Communication Product. Communication Products that are
lost,
damaged or otherwise rendered inoperable due to the Client's
negligent, reckless or intentional misuse, or due to reasons
beyond the Custodian's control, shall be repaired or
replaced
at the Client's expense. Communication Product repairs
shall
only be performed by the Custodian or a party authorized by
the
Custodian to perform such repairs.
6. Fees; Taxes. The Client agrees to pay the Custodian
license fees and such other fees as the parties hereto may
agree upon in writing from time to time in connection with
obtaining the Communication Products. The Client agrees to
reimburse the Custodian for, or shall pay directly to the
relevant taxing authorities, any sales, use, value-added,
excise or other taxes, other than taxes based on the
Custodian's net income, incurred by the Custodian or which
may
in the future be incurred by the Custodian as a result of
this
License or on or measured by the prices and other charges of
the Communication Products furnished for the Client's use,
however designated, levied or based, whenever the Custodian
has
paid or shall be liable to pay or collect any such tax from
the
Client pursuant to applicable law, as interpreted by the
departmental authorities of the taxing unit.
7. Warranty. The Custodian warrants that, for a period of
30
days after delivery of a Communication Product to the Client
such Communication Product will perform substantially in
accordance with the then current specifications therefor as
set
forth in the Documentation. If a Communication Product
fails
to meet the foregoing warranty and the Client gives the
Custodian written notice thereof during the applicable
warranty
period, the Custodian's sole obligation shall be to provide
technical services to attempt to correct the failure,
provided
that (i) the Client gives the Custodian detailed information
regarding such failure and the Custodian is able to
duplicate
same and (ii) the Communication Product has not been used in
an
unauthorized manner or otherwise misused or abused. The
Client
acknowledges that the Communication Products are complex,
may
not be error free, and that all errors, if any, may not be
correctable or avoidable. Except and to the extent expressly
provided above, and in lieu of all other warranties, the
Communication Products are provided "as is", all warranties
and
representations of any kind with regard to the Communication
Products are hereby disclaimed, including any implied
warranties of merchantability or fitness for a particular
purpose.
8. Infringement. The Custodian shall defend or settle, at
its
own expense, any cause of action or proceeding brought
against
the Client which is based on a claim that the use of a
Communication Product infringes any patent, copyright, trade
secret or other proprietary right. The Custodian shall
indemnify and hold the Client harmless against any final
judgment that may be awarded by a court of competent
jurisdiction against the Client as a result of the
foregoing.
The Custodian's obligations hereunder are conditioned upon
its
receiving from the Client (i) prompt written notice of each
such claim, (ii) reasonable cooperation and information in
Client's possession and (iii) the right to control and
direct
the investigation, defense and settlement of each such
claim.
If a claim is made that a Communication Product infringes
any
patent, copyright, trade secret or other proprietary right,
the
Custodian may, in the Custodian's sole discretion, either
procure for the Client the right to continue using such
Communication Product, modify it to
make its use noninfringing, or replace it with a
noninfringing
product; provided that if none of the foregoing is
reasonably
available to the Custodian, the Custodian may terminate the
license granted herein and require the Client to return all
copies of the relevant Communication Product.
Notwithstanding
the foregoing, the Custodian shall not be liable to the
Client
pursuant to this Section if a claim is based on (i) a
combination of a Communication Product with data or other
software or devices not supplied by the Custodian, (ii)
modifications to a Communication Product not made by the
Custodian or (iii) use of a Communication Product in an
unauthorized manner.
9. Related Services. These terms and conditions and the
Documentation are intended to define the rights and
obligations
of the Client with respect to Communication Products used by
the Client in connection with all services (e.g., custody,
funds transfers, foreign exchange etc.) offered by Xxxxxx
Guaranty Trust Company of New York and its affiliates to the
Client. The provisions of this Agreement and any documents
relating to other services offered by Xxxxxx Guaranty Trust
Company of New York and its affiliates may supplement these
terms and conditions but in the event of any inconsistency
between this Agreement or such other documents and these
terms
and conditions, these terms and conditions shall prevail.
10. Intraday Reports. The Client acknowledges that
intraday
reports received by the Client by means of any Communication
Product may contain information that is subject to
correction,
and that corrections of such information will routinely
occur
without notice to the Client. The Client understands that
intraday reports are provided for informational purposes
only
and are not to be relied upon for purposes of final
reconciliations or otherwise. Neither Xxxxxx Guaranty Trust
Company of New York nor any affiliate or subsidiary of
Xxxxxx
Guaranty Trust Company of New York that provides data with
respect to intraday reports makes any representation or
warranty that such reports are accurate or complete.
_______________________________
1In addition to the central bank, if applicable.
2JSA currently does not meet Rule 17-5 requirements.
3Citibank meets the capital requirements of Rule 17f-5
and
Ottoman bank currently does not.
