Exhibit (j)(1)
CUSTODY AGREEMENT
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This Agreement is made on the 28th day of September, 2000 between
(A) DEUTSCHE BANK AG, a company incorporated in the Federal
Republic of Germany, having its Asia Pacific Head Office at No. 0 Xxxxxxx Xxx,
#00-00 XXX Xxxxxxxx Xxxxx Xxx, Xxxxxxxxx 000000 (the "Bank"), and acting through
its branch(es) as stated in Schedule I of this Agreement (each relevant branch
shall be known as "Branch"; and Deutsche Bank AG acting through each Branch
shall be known as the "Bank")
(B) The subsidiary(ies) of Deutsche Bank AG as stated in
Schedule I of this Agreement (the "Subsidiary") (the relevant Branch or
Subsidiary shall hereinafter be referred to as the "Bank"); and
(C) THE INDIA FUND, INC., a corporation organized under the laws
of the State of Maryland having its principal office at 000, Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, XXX (the "Client").
1. DEFINITIONS AND INTERPRETATION
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1.1 "Authorised Person(s)" means any party (including a person
or a corporate entity) which has been authorised by the Board of Directors of
the Client and designated by written notice from the Client to act on the
Client's behalf in the performance of any acts, discretions or duties under this
Agreement;
"Branch" means any branch of the Bank specified in Schedule I of
this Agreement.
"Cash" means any cash from any source and in any currency held
from time to time by the Bank under the terms of this Agreement.
"Securities" include bonds, notes, shares, units of mutual funds,
certificates of deposit, futures, foreign exchange contracts, or other
securities and instruments, and rights or property which may at any time accrue
or be offered (whether by way of bonus, redemption, dividends, conversion,
option or otherwise) in respect of any of the foregoing, and any certificates,
options, receipts, warrants or other instruments (whether in registered or
unregistered form) representing rights to receive, purchase or subscribe for any
of the foregoing or evidencing or representing any other rights or interests
therein (including, without limitation, any of the foregoing constituted,
evidenced or represented by an entry in the records of the issuer or a
depository) which may from time to time be held by the Bank under the terms of
this Agreement.
"Subsidiary" means any subsidiary of the Bank specified in
Schedule I of this Agreement.
1.2 The expression "Agreement" shall include this Custody
Agreement and any schedule or annex or Instructions applicable hereto.
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2. APPOINTMENT OF CUSTODIAN
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The Client hereby appoints the Bank as custodian of all
Securities and Cash of Client which are delivered to and accepted by the Bank
pursuant to the terms and conditions set forth herein. The Bank hereby accepts
such appointment as custodian and agrees to perform the duties thereof as
hereinafter set forth.
The Client authorises the Bank to establish on the terms of this
Agreement and in each location stated in Schedule I, a custody account or
accounts including subaccounts for the Client's customers (the "Custody
Account") in the name of the Client, for the deposit of any Securities from time
to time received by the Bank for the account of the Client, and a cash account
or accounts including any subaccounts for the Client's customers (the "Cash
Account") and together with the Custody Account, the "Account" in the name of
the Client for the deposit of Cash from time to time received by the Bank for
the account of the Client, whether by way of deposit or arising out of or in
connection with any Securities.
3. REPRESENTATIONS AND WARRANTIES
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(i) Each of the Bank and the Client hereby represents and
warrants to the other that:
(a) during the term of this Agreement it (and, if applicable,
any person on whose behalf it may act as agent or otherwise in a
representative capacity) has and will continue to have full capacity
and authority to enter into this Agreement and to carry out the
transactions contemplated herein, and has taken and will continue to
take all action (including, without limitation, the obtaining of all
necessary corporate approvals and governmental consents in any
applicable jurisdiction) to authorise the execution, delivery and
performance of this Agreement;
(b) the terms of this Agreement do not constitute a breach of
any obligations by which it is bound whether arising by its
constitutional documents, any contract or operation of law;
(c) this Agreement, when executed and delivered, will be binding
upon it in accordance with its terms.
(ii) The Bank further represents and warrants to Client, that:
(a) if the Bank, a Branch or a Subsidiary is a "U.S. person"
within the meaning of Regulation S under the Securities Act of 1933,
as amended, such Bank, Branch or Subsidiary shall be qualified as a
custodian under Section 26(a) of the Investment Company Act of 1940
(the "1940 Act") and warrants that each of the Bank, each Branch and
each Subsidiary will remain so qualified or upon ceasing to be so
qualified, the Bank shall promptly notify Client in writing;
(b) each of the Bank, each Branch and each Subsidiary shall at
all times keep segregated on its books, from its own property and that
of its other customers, all Securities and Cash of the Client [other
than Securities which are maintained through a Securities System];
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(c) none of the Bank, any Branch or any Subsidiary shall effect
any transfer between the Account and any other account without
instructions to the Bank from the Client; and
(d) none of the Bank, any Branch or any Subsidiary shall lend
any Securities or Cash held in the Account to any person or entity.
Each party hereto agrees to deliver such documents, perform such
further acts and execute such further documents as may reasonably be required in
relation to this Agreement.
4. TRANSACTIONS NOT REQUIRING INSTRUCTIONS
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Unless otherwise instructed pursuant to Section 15 hereof, the
Bank is authorised by the Client to carry out the following transactions at the
Client's expense relating to the Securities and/or Cash, and the Bank shall
carry out the following transactions without requiring further instructions from
the Client:
(i) to complete and sign any affidavits, certificates of
ownership or other certificates as may be required to obtain payments
in respect of the Securities and Cash, and to execute any declarations
and make such filings and pay such amounts from the Account as may be
required by the tax or any other regulatory authority in any relevant
jurisdiction, whether governmental or otherwise, and whether relating
to ownership, income tax or capital gains, or any other tax, duty or
levy and to make claims for tax refunds, if any, including without
limitation as set forth in Section 14 (xiii) (and the Client further
agrees to ratify and to confirm or to do, or to procure the doing of,
such things as may be necessary to complete or evidence the Bank's
actions under this sub-clause (i) or otherwise under the terms of this
Agreement);
(ii) (a) to collect and receive on a timely basis, for the
account of the Client, all income and other payments and distributions
in respect of the Securities and/or Cash, and credit the same to the
relevant Account;
(b) to take any action necessary and proper in connection with
the receipt of income and other payments and distributions as are
referred to in sub-clause (ii)(a) above, including (without
limitation) the presentation of coupons and other interest items;
(iii) (a) to receive and hold for the account of the Client any
capital arising out of or in connection with the Securities and/or
Cash whether as a result of its being called, redeemed, matured or
retired or otherwise becoming payable (other than at the option of the
holder thereof) and credit the same to the relevant Account;
(b) to take any action necessary and proper in connection with
the receipt of any capital as is referred to in sub-clause (iii)(a)
above, including (without limitation) the presentation for payment of
any Securities which become payable as a result of their being called,
redeemed, matured or retired or otherwise becoming payable (other than
at the option of the holder thereof) and the endorsement for
collection of cheques, drafts and other negotiable instruments;
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(iv) to receive and hold for the account of the Client all
Securities received by the Bank as a result of a stock dividend, share
sub-division or reorganisation, capitalisation of reserves or
otherwise;
(v) to exchange interim or temporary receipts for definitive
certificates, and old or overstamped certificates for new
certificates;
(vi) to make cash disbursements or payments for any transfer
fees, taxes, duties, levies, expenses and/or any payments incurred in
handling or in connection with the Bank's duties under this Agreement
(except that no such disbursements shall be made for advisers' and
other third parties' fees), and debit the same to the Cash Account or
any other account of the Client with the Bank and for this purpose to
do any necessary currency conversion at such rate to be determined by
the Bank;
(vii) to deliver to the Client daily transaction advices of all
transfers to or from the Account and, at least monthly and from time
to time regular statements of account showing the Securities and/or
Cash held at such intervals as agreed by the parties; and
(viii) to forward to Client as soon as practicable copies of all
proxies, notices, reports, communications, information or other
documents that the Bank or any Branch or Subsidiary actually receives
relating to the Securities which requires discretionary action by the
beneficial owner thereof;
(ix) to perform such other actions that, pursuant to
instructions from the Client, shall be deemed standing instructions to
the Bank to so perform in specified circumstances, unless and until
the Bank receives subsequent instructions to the contrary, and
(x) appoint brokers and agents for any of the ministerial
transactions involving the Securities described in (i) - (ix),
including, without limitation, affiliates of the Bank.
5. TRANSACTIONS REQUIRING INSTRUCTIONS
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Without prejudice to the authority given to the Bank above, the
Bank is authorised to carry out, and shall carry out any transactions whatsoever
relating to the Securities and/or Cash upon receipt, and only upon receipt of
specific instructions made by the Client pursuant to Section 15, including,
without limitation, instructions to deliver or otherwise deal with the
Securities (for example pursuant to any sale, surrender or conversion), or to
make payment for and/or receive Securities purchased by the Client.
6. NOTICE OF RIGHTS ISSUES, GENERAL MEETINGS AND OTHER MATTERS
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The Bank shall forward to Client as soon as practicable copies of
all notices, proxies, reports, communications, information or other documents
that has actually been received by the Bank or any Branch or Subsidiary in
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respect of any bonus issues, rights issues, payment calls, takeover bids or
general meetings of the issuers/companies in relation to the Securities or any
other matter which requires discretionary action by the beneficial owner
thereof, and the Client shall give the Bank instructions on a timely basis so
that the Bank will have sufficient time to comply with the same. If the Bank
does not receive any timely instructions from the Client, the Bank shall (i)
with respect to any rights entitlement or a fractional interest resulting from a
rights issue, stock dividend or stock split, allow any such rights to lapse and
(ii) be authorised at its discretion to take or omit to take any other action
(including the execution of any form of proxy to vote thereon) as it may
reasonably deem advisable or expedient to be in the interest of the Client.
Until the Bank receives Instructions to the contrary, and subject
to the limitations contained in the Service Level Agreement, the Bank shall
promptly vote in respect of Securities in the Account, and promptly execute such
forms of proxy to vote thereon, for the purpose of electing directors or
approving an independent auditor, in each case voting for management's
recommendations.
If requested, the Bank shall, on a reasonable efforts basis,
endeavor to obtain any additional corporate communication such as annual or
interim reports, proxy statements, meeting circulars or local language agendas,
and forward them to the Client in the form obtained.
7. SEGREGATION, IDENTIFICATION AND REGISTRATION
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7.1 To the extent possible, Securities which are deposited in a
depository may be maintained with the depository in an account for the Bank's
customers and the Bank warrants that neither the Bank nor any Branch or
Subsidiary will mingle its own assets with such Securities held for the Client.
7.2 Where Securities are physically held by the Bank or any
Branch/Subsidiary, such Securities shall be physically segregated from the
securities or other property of the Bank or any Branch/Subsidiary or of the
other clients of the Bank or any Branch/Subsidiary.
7.3 Provided always that the Securities and/or Cash whether held
by the Bank or any Branch/Subsidiary or a depository shall be clearly identified
in the Bank's records and in each Branch/Subsidiary's records as owned by and
held on behalf of the Client.
7.4 The Securities shall be registered as per the Client's
instructions.
7.5 Each of the Bank and each Branch or Subsidiary shall keep
accurate and detailed accounts of all investments, receipts, disbursements and
other transactions for the Account. All accounts, books and records of the Bank
and each Branch or Subsidiary relating thereto shall be maintained and preserved
in the form reasonably requested by Client. All such accounts, books and records
relating to the Securities and Cash and each Branch or Subsidiary where the
Securities are kept shall be open to inspection/audit at all reasonable times
(subject to prior notice) during normal business hours by the auditors and
representatives of the Client, provided that such inspection/audit is not in
violation of any applicable laws. Whenever reasonably requested by the Client,
the Bank shall furnish general audit reports with respect to the services
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provided by the Bank hereunder on the Bank's and each Branch's and Subsidiary's
operational and security control. Records will be maintained in accordance with
the law and regulations that are applicable to investment companies similar to
the client.
8. CASH ACCOUNT PAYMENTS
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The Bank, upon receipt of Instructions, as defined in section 15
herein, shall be entitled to utilize the funds in the Cash Account to effect all
payments required or authorized under this Agreement.
9. OVERDRAWN AMOUNTS
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The Bank may at its discretion (without being obliged to do so)
extend credit, banking facility or financial accommodation or advance monies to
the Client for the purpose of meeting any payment or carrying out any
instruction or for any purpose in connection with this Agreement (including
facility for settlement of purchase or for advance of sale/redemption proceeds
or coupon payment), in which event any liabilities owing pursuant thereto (i)
shall be repayable by the Client on the Bank's demand (unless otherwise
expressly agreed to by the Bank in writing) and (ii) shall bear interest and
other charges at such rate(s) as the Bank customarily charges for similar
extensions of credit.
10. CUSTODY ACCOUNT AND CASH ACCOUNT PROCEDURES
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With respect to any transaction involving the Securities and/or
Cash, the Bank will cause the Cash Account and/or the Custody Account to be
credited or debited in accordance with normal market practice in the
jurisdiction or market in which the transaction occurs.
11. WITHDRAWAL AND DELIVERY
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The Client may at any time subject to the other terms of this
Agreement, demand withdrawal of all or any part of the Securities in the Custody
Account and/or Cash in the Cash Account. Payments of Cash shall be made at the
expense of the Client by banker's draft, telegraphic transfer, cheque or
otherwise as instructed by the Client. Delivery of Securities will be made at
the expense of the Client in such manner and at such location as instructed by
the Client. Where necessary the Bank will on withdrawal transfer any Securities
into the name of the Client or as the Client may direct at the expense of the
Client.
12. APPOINTMENT OF SECURITIES SYSTEMS
---------------------------------
The Client authorizes the Bank and any Branch or Subsidiary to
maintain Securities and Cash in the Account through a securities depositary or
clearing agency or system in which the Bank or such Branch or Subsidiary
participates (each, a "Securities System"); provided, however, that the Bank and
such Branch or Subsidiary may only act under this Agreement through Securities
Systems which qualify as an Eligible Securities Depository under Rule 17f-7 of
the Investment Company Act of 1940, as amended.
(i) With respect to Securities and Cash ("Property") in the
Accounts which are maintained by the Bank through a Securities System:
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(a) The Bank shall identify on its books such Property as being
maintained for the account of the Bank for the Client.
(b) Any Property maintained through a Securities System for the
account of the Bank will be subject only to the instructions of the
Bank.
(c) Property deposited with a Securities System will be
maintained in an account/accounts holding only assets of the customers
of the Bank, unless precluded by applicable law, rule or regulation.
(d) The Bank shall provide the Client with any report obtained
by the Bank on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the Securities System.
(e) Securities deposited with a Securities System shall be held
subject to the rules and operating procedures of such party and any
applicable laws and regulations whether of a governmental authority or
otherwise;
The Client understands that the Bank may not be able to exercise
discretion in the selection or monitoring of a Securities System, or in the
negotiation of contractual provisions with the same.
13. MISCELLANEOUS
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The Client agrees and understands that the Bank may have banking
relationships with or interests in companies whose Securities are held in the
Custody Account or which are purchased or sold for the Custody Account.
14. SCOPE OF RESPONSIBILITY; STANDARD OF CARE
-----------------------------------------
(i) The Bank shall use reasonable care with respect to the
safekeeping of Securities and Cash and in the performance of its duties under
this Agreement but shall not be responsible for any loss or damage suffered by
the Client as a result of the Bank performing such duties or for any act or
omission in respect of any instructions and/or under this Agreement unless the
same results from negligence or wilful misconduct or bad faith on the part of
the Bank, in which event the Bank's liability shall not exceed Client's direct
damages to be determined based on, among other things the market value of the
relevant Securities and/or Cash at the time of the Client's discovery of the
loss or damage. The Client shall promptly inform the Bank in writing of such
loss or damage and shall take steps to mitigate such loss or damage;
The Bank shall be liable to Client for any loss which occurs as
the result of failure of a Branch or Subsidiary to exercise reasonable care with
respect to the safekeeping of the Securities and Cash and any other duties
delegated to such Branch or Subsidiary to the same extent as if the Bank
committed such failure itself. With respect to a Securities System, the Bank
shall only be responsible or liable for losses arising from employment of such
Securities System caused by the negligence, willful misconduct or bad faith of
the Bank or any Branch or Subsidiary or any of their respective employees or
agents;
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(ii) Upon receipt of each and every transaction advice and/or
statement of account supplied to it by the Bank, the Client shall examine the
same and notify the Bank within sixty days of the date of receipt of any such
advice or statement of any error therein. In the absence of any notification by
the Client within the sixty days period, the transactions/entries indicated by
the advice or statement shall be conclusively settled against the Client to be
correct;
(iii) The Bank's sole responsibility with regard to the sale
proceeds of the Securities is to receive payment whether by way of cheque, bank
draft or any other form, of such proceeds from the purchaser (or its agent),
broker or any other party and to credit the Account with such proceeds; provided
that the Bank shall not be liable to the Client in any way if such payment to
the Bank is not honoured by the banker upon whom that payment is drawn or
otherwise is not good, timely or valid payment. The Bank may make delivery of
the Securities either contemporaneously with or before the receipt of such
payment or purported payment in accordance with local settlement procedures;
(iv) All collections of the Securities and/or Cash and of any
funds or other property paid or distributed in respect of the Securities and/or
Cash are made at the risk of the Client and the Bank is entitled to make payment
prior to delivery of Securities in accordance with local settlement procedures
and shall not be responsible, to the extent the Bank has exercised reasonable
care, for the seller's (or its agent's), broker's or any other party's failure
to make good, valid or timely delivery of any Securities and/or Cash nor, to the
extent the Bank has exercised reasonable care, for the genuineness, validity or
title of any documents received in respect of the Securities and/or Cash;
(v) The Bank or its agents, as the case may be, may (but without
being under any obligation) institute or defend legal proceedings, or take or
defend any other action arising out of or in connection with the Securities
and/or Cash provided that the Bank receives instructions from the Client
authorizing such proceeding or other action and agreeing to indemnify the Bank
against any reasonable costs, charges and expenses arising from such proceedings
or other action;
(vi) So long as and to the extent it has exercised reasonable
care, the Bank does not have any responsibility for any loss or damage suffered
by the Client that results from, or is caused by any reason or cause beyond its
reasonable control, (including (without limitation) nationalisation, currency
turmoil or restrictions, fire, acts of war, acts of God, acts of any authority
whether de jure or de facto, requirements of any laws or regulations, change in
laws or regulations, breakdown or failure of communication or computer
facilities, strikes or industrial action, boycott, civil commotion or unrest,
acts of terrorism, default, failure or delay of courier or delivery service, or
acts or disruption of any relevant stock exchange, depository, clearing house,
settlement system or market);
(vii) So long as and to the extent it has exercised reasonable
care, the Bank shall not be liable for any loss resulting from, or caused by the
carrying out of any instructions as per the terms of this Agreement;
(viii) The Client shall be responsible for all filings, tax
returns and reports on any transactions undertaken pursuant to this Agreement
which must be made to any relevant authority whether governmental or otherwise
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and for the payment of all unpaid calls, taxes, imposts, levies or duties due on
any principal or interest, or any other liability or payment arising out of or
in connection with the Securities and/or Cash, and in so far as the Bank is
under any legal obligation to pay the same on behalf of the Client it may (but
without liability if it failed to do so) do so out of the Securities and/or Cash
only upon notification by the Bank to the Client;
(ix) The Bank is not acting under this Agreement as investment
manager or investment adviser to the Client and responsibility for the
selection, acquisition and disposal of the Securities and/or Cash shall remain
with the Client at all times;
(x) The Bank shall not be bound to return identical securities
lodged. The Client shall accept securities of the same class and type in place
of the securities deposited;
(xi) So long as and to the extent it has exercised reasonable
care, the Bank shall not be liable for any negligence, default, failure or delay
of any securities registration body or securities registrar (or similar party)
and any losses arising therefrom (including non-receipt of bonus, dividends and
any rights);
(xii) The Bank shall not be liable for any consequential or
indirect loss;
(xiii) With respect to withholding taxes deducted and which may
be deducted from any income received from any Property in the Account, the Bank
shall perform such services as may be agreed by the parties in the Service Level
Agreement;
(xiv) The Bank is entitled at its discretion to reverse
incorrect credit entries to any accounts (including where an entry was made in
anticipation of receipt of funds/assets which receipt was however not
fulfilled);
(xv) Unless otherwise specified herein, the Bank shall not have
any duty to monitor the compliance by the Client or its customers/agents with
any guideline or restriction imposed by the Client's constitutional documents or
by any other document, law or regulation (including compliance with any
notification requirement relating to the Client's or its customers'/agents'
beneficial ownership of securities);
(xvi) The Bank may rely in good faith on the advice of legal
counsel;
(xvii) The Bank shall not have any liability in connection with
its reliance in good faith on records provided to the Bank by the Client that
were maintained for the Client by another party prior to the Bank's appointment
hereunder; and
(xviii) Where the Bank is providing market values of securities
(via electronic on-line service or otherwise), the Bank may obtain information
on such values from outside sources which the Bank considers to be reliable and
the Bank makes no warranty as to the reliability, accuracy or completeness of
such information to the extent the Bank has exercised reasonable care.
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15. INSTRUCTIONS
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(i) The Bank is authorised to act on any instructions given or
purportedly given by Authorised Person(s) by any of the following methods:
(a) in writing;
(b) by telegram, telex, facsimile, S.W.I.F.T. or other
electronic or teleprocess instruction system (including email and db
Custody) acceptable to the Bank (whether tested or untested);
(c) orally (including via telephone) provided that any oral
instructions shall be confirmed by the Client in the manner set forth
in (a), (b) or (d) of this section, the Bank may in its absolute
discretion act upon such oral instructions without further
confirmation, or refrain from acting upon any oral instructions until
it has received confirmation thereof;
(d) any other methods agreed between the Client and the Bank.
(ii) The Bank may rely in the performance of its duties under
this Agreement and without liability on its part, upon any instructions
reasonably believed by it in good faith to be given by the Authorised Person(s)
or any document which it believes to be genuine, and provided the Bank is not
guilty of negligence, wilful misconduct or bad faith, the Bank shall have no
responsibility for any losses or liabilities whatsoever should such instructions
(or the signature thereon) or such document turn out to be unauthorised,
erroneous or fraudulent;
(iii) Instructions shall continue in full force and effect until
cancelled or superseded;
(iv) If any instructions are in the Bank's opinion conflicting
and/or ambiguous, the Bank shall inform the Client and may without any liability
on its part reasonably refuse to execute such instructions until such conflict
or ambiguity has been resolved to its satisfaction;
(v) Instructions shall be carried out subject to the rules,
laws, operating procedures and market practice of any relevant stock exchange,
Securities System, market or jurisdiction where or through which they are to be
executed, and the Bank is entitled to execute any instructions in accordance
with customary or established securities trading or securities processing
practices and procedure in the jurisdiction or market in which the transaction
occurs. The Bank may further refuse to execute any instruction or accept any
deposit if in the Bank's reasonable opinion it is contrary to any applicable
law, rule or other regulatory requirement (including those arising from any
governmental authority, self-regulatory organisation, stock exchange, Securities
System or market) or the assets for deposit are not in good order;
(vi) The Bank may refuse to execute any instruction if in its
reasonable opinion (a) there are reasonable grounds for believing that
liabilities arising from the execution of such instruction may not be adequately
covered by the Cash and/or Securities, (b) personal liabilities may be incurred
by it pursuant to such instruction, (c) satisfactory arrangement for the
settlement of any outstanding securities transaction hereunder has not been made
or (d) the instruction may be unauthorised or fraudulent; and
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(vii) The Bank shall be under no duty to assess the prudence of
any instructions or to give advice in relation thereto, and may act on the
instructions irrespective of their prudence or otherwise.
16. INDEMNITY
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The Client agrees to indemnify the Bank and to hold the Bank
harmless against all charges, costs, damages, losses, claims, liabilities,
reasonable expenses, fees and disbursements (together with any value added tax
or similar tax imposed thereon from time to time), which the Bank may suffer or
incur howsoever in connection with or arising from this Agreement.
Provided that this Clause shall not be available to the Bank if
the liabilities for which it is seeking indemnity hereunder arise from its own
negligence, willful misconduct or bad faith.
17. SECURITY FOR PAYMENT
--------------------
To secure payment of all obligations due hereunder, the Customer
hereby grants to the Custodian a continuing security interest in and right of
setoff against the Accounts and all Property held therein from time to time in
the full amount of such obligations. Provided however, that prior to exercising
any such rights under this Section, the obligations shall, (i) have been billed
to the Customer; (ii) not be the subject of good faith inquiry by the Customer;
and (iii) remain due and unpaid by the Customer. Provided further, interest on
such amounts shall accrue at the customary rate charged by the Custodian. If any
such inquiry is raised by customer, the parties shall promptly engage in good
faith discussions to resolve such inquiry. Customer shall use good faith efforts
to notify the custodian if it has not received any invoice within a reasonable
time after the date such invoice is customarily received. If no such notice is
received from the customer, the invoice will be deemed received as of the date
such invoice is customarily received. If customer has not responded to or
disputed an invoice within 60 days of having received or deemed to have received
such invoice the invoice will be deemed not the subject of inquiry by the
Customer for the purposes of (ii) above. In any such case and without limiting
the foregoing, the Custodian shall be entitled to take such other actions or
exercise such other options, powers and rights as the Custodian now or hereafter
has as a secured creditor under the New York UCC or any other applicable law.
18. FEES AND EXPENSES
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Without prejudice to any of its liabilities and obligations under
this Agreement the Client agrees to pay to the Bank from time to time (without
any deduction) such fees/commission for its services pursuant to this Agreement
as may be agreed in writing between the Bank and the Client and the Bank's
reasonable out-of-pocket expenses, disbursements and costs incurred under this
Agreement. The Client agrees to hold the Bank harmless from any liability, loss
or withholding resulting from any taxes or other governmental charges, and any
expenses related thereto, which may be imposed or assessed in connection with or
arising out of any payment, the Custody Account and/or the Cash Account. If any
applicable law requires a deduction to be made to any payment, the Client shall
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pay such further sum to the Bank so that the Bank would ultimately receive an
amount equal to that it would have received had no such deduction been made. The
Client further agrees that the Bank may charge the Client interest at the Bank's
applicable rate from time to time on any sums owed under this Agreement but not
paid by the Client on the due date of payment.
19. TERMINATION
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Each of the Bank and the Client may terminate this Agreement on
giving not less than 90 days written notice to the other party. Upon the expiry
of such notice period the Bank shall account to the Client in accordance with
the terms of this Agreement. This Agreement may be terminated by the Client or
the Bank by ninety (90) days written notice to the other, provided that notice
by the Client shall specify the names of the persons to whom the Bank shall
deliver the Securities in the Account and whom the Cash in the Account shall be
paid. If notice of termination is given by the Bank, the Client shall, within
ninety (90) days following the giving of such notice, deliver to the Bank a
written instruction specifying the names of persons to whom the Bank shall
deliver the Securities in the Account and to whom the Cash in the Account shall
be paid. In either case, the Bank shall deliver such Property and all records
related thereto to the persons so specified. The Bank may in its discretion
withhold from such delivery such Property as may be necessary to settle
transactions pending at the time of such delivery. If within ninety (90) days
following the giving of a notice of termination by the Bank, the Bank does not
receive from the Client a written Instruction specifying the names of the
persons to whom the Bank shall deliver the Securities in the Custody Account and
to whom the Cash in the Cash Account shall be paid, the Bank, at its election,
may deliver such Securities and pay such Cash to a bank doing business in the
State of New York, USA (not having less than $2,000,000 aggregate capital,
surplus and undivided profits) to be held and disposed of pursuant to the
provisions of this Agreement, or may continue to hold such Securities and Cash
until a written Instruction as aforesaid is delivered to the Bank, provided that
the Bank's obligations if it continues so to hold such Property shall be limited
to settling transactions that are pending during such continued period and to
safekeeping of such Securities and Cash. Upon termination hereof, Client shall
pay to Bank such compensation as may be due to Bank, and shall likewise
reimburse Bank for other amounts payable or reimbursable to Bank which have
accrued up to the date of such termination hereunder. Termination of this
Agreement shall not relieve the Bank from its obligations to settle any
transactions pending on the termination date nor shall it relieve either party
of any liability which it may have with respect to any of its actions or
inactions during the period this Agreement was in effect.
20. ASSIGNMENT
----------
No party hereto may assign, transfer or charge all or any of its
rights, benefits and obligations hereunder, but this Agreement shall enure to
the benefit of the successor of any of the parties hereunder.
21. RULE 17F-5; RULE 17F-7
----------------------
The Bank and each Branch/Subsidiary represents that each
Branch/Subsidiary as listed in Schedule I is an eligible foreign custodian as
per Rule 17f-5 of the Investment Company Act of 1940. The Bank shall promptly
13
notify the Client if the aforesaid representation ceases to be true, and in
which event, the Client may terminate this Agreement vis-a-vis the relevant
Branch/Subsidiary upon written notice to the Bank.
22. CONFIDENTIALITY
---------------
The parties hereto agree that each shall treat confidentially the
terms and conditions of this Agreement and all information provided by each
party to the other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto
solely for the purpose of rendering services pursuant to this Agreement and,
except as may be required in carrying out this Agreement, shall not be disclosed
to any third party without the prior consent of such providing party. The
foregoing shall not be applicable to any information that is publicly available
when provided or thereafter becomes publicly available other than through a
breach of this Agreement, or that is required or requested to be disclosed by
any bank or other regulatory examiner of the Bank, Client, or any Subcustodian,
any auditor of the parties hereto, by judicial or administrative process or
otherwise by applicable law or regulation. The provisions of this Section shall
survive the termination of this Agreement.
23. SEVERABILITY
------------
If any provision hereunder becomes invalid, illegal or
unenforceable under any law, the validity, legality and enforceability of the
remaining provisions and this Agreement shall not be affected or impaired.
24. ADVERSE CLAIMS
--------------
Where the Bank is notified of any adverse claim or dispute in
relation to any Securities and/or Cash, the Bank shall promptly inform the
Client of the same and shall take whatever action is reasonably deemed necessary
by it in relation to such Securities and/or Cash.
25. NOTICES
-------
Except as otherwise provided in this Agreement, all requests,
demands or other communications between the parties or notices in connection
herewith (a) shall be in writing, hand delivered or sent by registered mail,
telex or facsimile addressed to the following addresses or to such other address
as shall have been furnished by the receiving party pursuant to the provisions
hereof and (b) shall be deemed effective when received, or, in the case of a
telex, when sent to the proper number and acknowledged by a proper answerback:
For Client: CIBC World Markets Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
14
For Bank: Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, XX XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
26. AMENDMENT; MODIFICATION
-----------------------
No provision of this Agreement may be amended, modified or waived
except in a writing signed by the parties hereto. No waiver of any provision
hereto shall be deemed a continuing waiver unless it is so designated. No
failure or delay on the part of either party in exercising any power or right
under this Agreement operates as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further exercise thereof of
the exercise of any other power or right.
27. FURTHER TERMS AND CONDITIONS
----------------------------
The terms and conditions listed in the Annex(es) hereto and any
Annex accepted by both parties from time to time shall be deemed to be
incorporated into and form an integral part of this Agreement. Where there is
any inconsistency between the terms of this Agreement and the Annex(es), the
terms of the Annex(es) shall prevail.
28. POWER OF ATTORNEY
-----------------
Where necessary, the Client shall execute such power of attorney
in favour of the Bank, in the form as required by the Bank and the Bank shall
not be obliged to proceed with any instructions until it has received the duly
executed and notarized (if necessary) power of attorney.
29. INCONSISTENCY
-------------
Where any inconsistency exists between any provision of this
Agreement and the Bank's General Business Conditions, the provision of this
Agreement shall prevail.
30. WAIVER OF SOVEREIGN IMMUNITY
----------------------------
Each party agrees that this Agreement involves only civil
activities and represents a commercial transaction, and hereby expressly waives
the defense of sovereign immunity (or any similar defense in the relevant
jurisdiction) (including any defense based on the fact or allegation that it is
an agency or instrumentality of a sovereign state) to which it may be entitled.
31. GOVERNING LAW/PLACE OF JURISDICTION
-----------------------------------
This Agreement shall be governed by, and interpreted in
accordance with, the law of the State of New York. This Agreement shall not be
assignable by either party, but shall bind the successors in interest of the
Client and the Bank.
15
32. EXISTING ACCOUNTS
-----------------
Where the Client has any existing account, the Bank shall be
entitled at its discretion to treat this account as being governed by this
Agreement or any provision hereof unless the Bank has received written
instruction otherwise from the Client.
IN WITNESS the hands of the parties hereto the day and year first
above written.
Signed for and on behalf of The India Fund, Inc, as the Client
By:-----------------------------
Name:
Title:
In the presence of:
--------------------------------
Signed for and on behalf of Deutsche Bank AG for each Branch, as the Bank
By:----------------------------- By:-----------------------------
Name: Name:
Title: Title:
Signed for and on behalf of Bankers Trust Company
By:-----------------------------
Name:
Title:
