AMENDED AND RESTATED GLOBAL CUSTODY RIDER
TO
DOMESTIC CUSTODY AGREEMENT FOR
MUTUAL FUNDS
We hereby request you, The Chase Manhattan Bank ("Chase" or "Delegate"),
to provide to us, EQ Advisors Trust ("Trust"), on behalf of each of the Trust's
separate series ("Portfolios") designated in Appendix A to the Domestic Custody
Agreement, Global Custody Services subject to the terms of our Domestic Custody
Agreement with you, and the terms herein. If there is any conflict between the
terms in our domestic Custody Agreement and the terms in this Amended and
Restated Global Custody rider ("Rider") with regard to your providing Global
Custody Services to us, the terms of this Rider shall govern. All capitalized
terms not defined herein shall have the meaning a set forth in the Domestic
Custody Agreement. The terms of this Rider shall be effective as of the date
stated below.
WHEREAS, pursuant to the provisions of Rule 17f-5(b) under the
Investment Company Act of 1940, as amended ("1940 Act" and subject to the terms
and conditions set forth herein, the Board of Trustees ("Board") of the Trust
desires to delegate to the Delegate, and the Delegate hereby agrees to accept
and assume, certain responsibilities described herein concerning Assets, as
defined in Section 1(b) hereof, held outside the United States.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
Maintenance of Financial Assets and Cash Outside the United States
Unless our instructions specifically require another location acceptable
to you:
Financial Assets shall be held in the country or other
jurisdiction in which the principal trading market for such Financial
Assets are located, where such Financial Assets are to be presented for
payment or where such Financial Assets are acquired; and
cash shall be credited to an account in a country or other
jurisdiction in which such cash may be legally deposited or is the legal
currency for the payment of public or private debts.
Financial Assets and cash hereinafter shall be referred to collectively
as "Assets".
Cash may be held pursuant to instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent you can comply with our instructions to you, you are authorized to
maintain cash balances on deposit for us with you or one of your "Affiliates" at
such reasonable rates of interest as may from time to time be paid on such
accounts, or in non-interest bearing accounts as we may direct, if acceptable to
you. For purposes hereof, the term "Affiliate" shall mean an entity controlling,
controlled by, or under common control with you.
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If we wish to have any of the Assets held in the custody of an
institution other than the established Subcustodians as defined in Section 2
hereof (or their securities depositories), such arrangement must be authorized
by a written agreement, signed by you and us.
Subcustodians and Securities Depositories.
You may act under this Rider through the Subcustodians listed in
Schedule A hereto that are branches of a U.S. Bank, with which you have entered
into subcustodial agreements. You may act under this Rider through the
Subcustodians listed in Schedule B hereto that are Eligible Foreign Custodians
(hereinafter defined), with which you have entered into subcustodian agreements
or with your own branches. You may act under this Rider through the Compulsory
Depositories listed in Schedule C hereto. At our request, you may, but need not,
add to Schedule B an Eligible Foreign Custodian (hereinafter defined) that is
either a bank or a securities depository that is not a Compulsory Depository (as
defined herein) where you have not acted as Foreign Custody Manager (hereinafter
defined) with respect to the selection thereof. You shall notify us in writing
in the event that you agree to add any such entity. We authorize you to hold
Assets recorded to the Custody Account in accounts that you have established
with one or more of your branches or Subcustodians. You and the Subcustodians
are authorized to hold any of the Financial Assets in your accounts with any
securities depository in which you or they participate, subject in the case of a
Compulsory Depository to the provisions set forth in section 9(e) hereof.
You may add new, replace or remove Subcustodians. We shall be given
reasonable notice by you of any amendment to Schedules A or B. Subcustodians
also may be added to Schedule A or B by all written instructions of the Trust
that are accepted in writing by you in your sole and absolute discretion as
amendments to Schedule A or B. Upon our request, you shall identify the name,
address and principal place of business of any Subcustodian of our Assets and
the name and address of the governmental agency or other regulatory authority
that supervises or regulates such Subcustodian.
To be a Subcustodian of Assets maintained outside the United States, the
Subcustodian chosen must be either a branch of a U.S. Bank or an Eligible
Foreign custodian, which are further defined as follows:
"U.S. Bank" shall mean a qualified U.S. bank, as defined in Rule
17f-5(a)(7) under the 1940 Act;
"Eligible Foreign Custodian" shall have the meaning set forth in
Rule 17f-5(a)(1).
Use of Subcustodian.
You shall identify the Assets on your books as belonging to us.
A Subcustodian shall hold our Assets together with assets belonging to
other of your customers in accounts identified on such Subcustodian's books as
for the exclusive benefit of your customers.
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Any Assets in the accounts held by a Subcustodian shall be subject only
to the instruction of you or your agent. Any Financial Assets held with a
securities depository for the account of a Subcustodian shall be subject only to
the directions of such Subcustodian.
Any agreement you enter into with a Subcustodian for holding your
customers' assets shall provide: (i) for indemnification or insurance
arrangements (or any combination of the foregoing) such that the Trust and its
Portfolios will be adequately protected against the risk of loss of the Assets
held in accordance with such agreement; (ii) that the Assets shall not be
subject to any right, charge, security interest, lien or claim of any kind in
favor of such Subcustodian or its creditors, except a claim of payment for their
safe custody or administration or, in the case of cash deposits, liens or rights
in favor of creditors of the Subcustodian arising under bankruptcy, insolvency
or similar laws; (iii) that beneficial ownership of the Assets shall be freely
transferable without the payment of money or value other than for safe custody
or administration; (iv) that adequate records will be maintained identifying the
Assets as belonging to the Trust, on behalf of its Portfolios, or as being held
by a third party for the benefit of the Trust, on behalf of its Portfolios; (v)
that the Trust's independent public accountants will be given access to those
records or confirmation of the contents of those records, and (vi) that the
Trust will receive periodic reports with respect to the safekeeping of the
Assets, including, but not limited to, notification of any transfer of the
Assets to or from the account of a Portfolio or a third party account containing
the Assets held for the benefit of the Portfolio. In lieu of any or all of the
provisions set forth in (i) though (vi) above, such agreement may contain such
other provisions that Chase, as the Foreign Custody Manager, determines will
provide, in their entirety, the same or greater level of care and protection for
the Assets as the provisions set forth in (i) through (vi) above in their
entirety. Where financial Assets are deposited by a Subcustodian with a
securities depository, you shall cause the Subcustodian to identify on its books
as belonging to you, as agent, the Financial Assets shown on the Subcustodian's
account on the books of such securities depository. The foregoing shall not
apply to the extent of any special agreement or arrangement made by us with any
particular Subcustodian.
Global Securities Account Transactions.
Financial Assets shall be transferred, exchanged or delivered by you or
the Subcustodian upon receipt by you of instructions that include all
information required by you. Settlement and payment for Financial Assets
received for, and delivery of Financial Assets out of, the Custody Account may
be made in accordance with the customary or established securities trading or
securities processing practices and procedures in the jurisdiction or market in
which the transaction occurs, including, without limitation, delivery of
Financial Assets to a purchaser, dealer or their agents against a receipt with
the expectation of receiving later payment and free delivery. Delivery of
Financial Assets out of the Custody Account may be made in any manner
specifically required by our instructions acceptable to you.
All collections of funds or other property paid or distributed in
respect of Financial Assets in the Custody Account shall be made at our risk.
You shall have no liability for any loss occasioned by delay in the actual
receipt of notice by you or by Subcustodians of any payment, redemption or other
transaction regarding Financial Assets in the Custody Account in respect of
which you have agreed to take any action under the Agreement.
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Corporate Actions; Proxies; Tax Reclaims.
Corporate Actions
Whenever you receive information concerning the Financial Assets,
which requires discretionary action by the beneficial owner of the
Financial Assets (other than a proxy), such as subscription rights,
bonus issues, stock repurchase plans and rights offerings, or legal
notices or other material intended to be transmitted to Financial Assets
holders ("Corporate Actions"), you shall give us notice of such
Corporate Actions to the extent that your central corporate actions
department has actual knowledge of a Corporate Action in time to notify
your customers.
When a rights entitlement or a fractional interest resulting from
a rights issue, stock dividend, stock split or similar Corporate Action
is received that bears an expiration date, you shall endeavor to obtain
instructions from us or an Authorized Officer, but if instructions are
not received in time for you to take timely action, or actual notice of
such Corporate Action was received too late to seek instructions, you
are authorized to sell such rights entitlement or fractional interest
and to credit the Cash Account with the proceeds or take any other
action you deem, in good faith, to be reasonable and appropriate, in
which case you shall be held harmless for any such action.
Proxy Voting. You shall provide proxy voting services, if selected by
us, in accordance with the terms of the Proxy Voting Services Rider hereto.
Proxy voting services may be provided by you or, in whole or in part, by one or
more third parties appointed by you (which may be your Affiliates); provided
that you shall be liable for the performance of any such third party to the same
extent as you would have been if you performed such services yourself.
Tax Reclaims.
Subject to the provisions hereof, you shall apply for a reduction
of withholding tax and any refund of any tax paid or tax credits which
apply in each applicable market in respect of income payments on
Financial Assets for our benefit which you believe may be available to
us.
The provision of tax reclaim services by you is conditional upon
your receiving from us or to the extent beneficially owned by others,
the beneficial owners, of Financial Assets (A) a declaration of its
identify and place of residence and (B) certain other documentation (pro
forma copies of which are available from you). We acknowledge that, if
you do not receive such declarations, documentation and information,
additional United Kingdom taxation shall be deducted from all income
received in respect of Financial Assets issued outside the United
kingdom and that U.S. non-resident alien tax or U.S. backup withholding
tax shall be deducted from U.S. source income. We shall provide to you
such documentation and information as you may require in connection with
taxation, and warrant that, when given, this information shall be true
and correct in every respect, not misleading in any way, and contain all
material information. We
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undertake to notify you immediately if any such information requires
updating or amendment.
You shall not be liable to us or any third party for any taxes,
fines or penalties payable by you or us, and shall be indemnified
accordingly, whether these result from the inaccurate completion of
documents by us or any third party, or as a result of the provision to
you or any third party of inaccurate or misleading information or the
withholding of material information by us or any other third party, or
as a result of any delay of any revenue authority or any other matter
beyond your control.
We confirm that you are authorized to deduct from any cash
received or credited to the Cash Account any taxes or levies required by
any revenue or governmental authority for whatever reason in respect of
the Custody Account.
You shall perform tax reclaim services only with respect to
taxation levied by the revenue authorities of the countries notified to
us from time to time and you may, by notification in writing, at your
absolute discretion, supplement or amend the markets in which the tax
reclaim services are offered. Other than as expressly provided in this
sub-clause, you shall have no responsibility with regard to our tax
position or status in any jurisdiction.
Confirm that you are authorized to disclose any information
requested by any revenue authority or any governmental body in relation
to us or the Financial Assets and/or cash held for us.
Tax reclaim services may be provided by you or, in whole or in
part, by one or more third parties appointed by you (which may be your
Affiliates); provided that you shall be liable for the performance of
any such third party to the same extent as you would have been if you
performed such services yourself.
Nominees.
Financial Assets which are ordinarily held in registered form may be
registered in a nominee name of yours, a Subcustodian, or a securities
depository, as the case may be. You may without notice to us cause any such
Financial Assets to cease to be registered in the name of any such nominee and
to be registered in our name. We agree to hold you, the Subcustodians listed on
Schedule A and B, Compulsory Depositories, and your and their respective
nominees harmless from any liability arising directly or indirectly from your or
their status as a mere record holder of Financial Assets in the Custody Account.
Standard of Care.
With respect to Section 7 of the Domestic Custody Agreement, delete the
second paragraph under "Custodian Responsibility" and insert, in lieu thereof,
the following:
You shall use reasonable care with respect to your obligations and the
safekeeping of our Assets hereunder. You shall be liable to us for any loss
which shall occur as the result of the
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failure of a Subcustodian listed in Schedules A and B (except that you shall
have no liability for the performance of a Compulsory Depository as defined in
Section 9(e) hereof and listed in Schedule C) to exercise reasonable care with
respect to the safekeeping of Assets where such loss results directly from the
failure of a Subcustodian to use reasonable care in the provision of custodial
services by it in accordance with the standards in its local market or from the
willful default of such Subcustodian in the provision of custodial services by
it. In the event of any loss to us by reason of the failure of you or a
Subcustodian listed in Schedules A and B to utilize reasonable care you shall be
liable to us only to the extent of our direct damages, to be determined based on
the market value of the Assets which are the subject of the loss at the date of
discovery of such loss and without reference to any special conditions or
circumstances. You shall have no liability whatsoever for any special, indirect
or consequential damages of any kind whatsoever (including, but not limited to,
lost profits) suffered by us in connection with the transactions contemplated
hereby and the relationship established hereby even if you have been advised as
to the possibility of the same and regardless of the form of the action through
which any such claim for damages may be made. As long as you shall have been in
compliance with your obligations under Rule 17f-5 to determine that each
Subcustodian listed on Schedule A and B has the requisite financial strength to
provide reasonable care for the Trust's Assets, you shall not be responsible for
the insolvency of any Subcustodian which is not a branch or your Affiliate.
With respect to Section 7 of the Domestic Custody Agreement, add the
following at the end of the "Custodian Responsibility" section:
You shall be entitled to rely, and may act, upon the advice of counsel
(who may be counsel for us) on all matters and shall be without liability for
any action reasonably taken or omitted pursuant to such advice.
Without limiting anything else contained in this section, you shall not
be liable for any loss which results from: 1) the general risk of investing, or
2) investing or holding Assets in a particular country including, but not
limited to, nationalization, expropriation or other governmental actions;
regulation of the banking or securities industry; currency restrictions,
devaluations or fluctuations; and market conditions which prevent the orderly
execution of securities transactions or affect the value of Assets.
You hereby warrant to us that in your opinion, after due inquiry, the
established procedures to be followed by each of your branches and each branch
of a qualified U.S. Bank holding our Assets pursuant hereto afford protection
for such Assets at least equal to that afforded by your established procedures
with respect to similar securities held by you and your securities depositories
in New York.
You hereby warrant to us that in your opinion, after due inquiry, the
established procedures to be followed by each Subcustodian or each
non-Compulsory Depository (as listed in Schedule A and B) holding our Assets
pursuant hereto shall be subject to reasonable care, based on the standards
applicable to custodians in the relevant market, after having considered all
factors relevant to the safekeeping of such Assets, including without limitation
those factors set forth in Rule 17f-5 under the 1940 Act.
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At our election we will be entitled to be subrogated to your rights with respect
to any claims you may have against a Subcustodian or Compulsory Depository as a
consequence of any loss, damage, cost, expenses, liabilities or claim incurred
by us if and to the extent that we have not been made whole by you for any such
loss, damage, expense, liability or claim; it being understood that the
foregoing does not constitute a representation by you that subrogation will be
permitted by applicable law.
Fees and Expenses.
We agree to pay you for Global Custody Services hereunder the fees set
forth in Schedule E hereto or such other amounts as may be agreed upon in
writing, together with your reasonable out-of-pocket or incidental expenses,
including, but not limited to, legal fees.
Miscellaneous.
Foreign Exchange Transactions. To facilitate the administration of our
trading and investment activity, you are authorized to enter into spot or
forward foreign exchange contracts with us or an Authorized Officer for us and
may also provide foreign exchange through your Affiliates or Subcustodians.
Instructions including standing instructions, may be issued with respect to such
contracts but you may establish rules or limitations concerning any foreign
exchange facility made available. In all cases where you and your Affiliates or
Subcustodians enter into a foreign exchange contract related to the Custody
Account, the terms and conditions of the then current foreign exchange contract
used by you or your Affiliate or Subcustodian and, to the extent not
inconsistent, the Agreement shall apply to such transaction.
Certification of Residency, etc. We certify that we are a resident of
the United States and agree to notify you of any changes in residency. You may
rely upon this certification or the certification of such other facts as may be
required to administer your obligations under this Rider and the Agreement. We
shall indemnify you against all losses, liability, damages, claims or demands
arising directly or indirectly from any such certifications.
Access to Records. You shall allow our independent public accountant
reasonable access to records relating to the Custody Account as is required in
connection with their examination of books and records pertaining to our
affairs. Subject to restrictions under applicable law, you shall also obtain an
undertaking to permit our independent public accountants reasonable access to
the records of any Subcustodian which has physical possession of any Financial
Assets as may be required in connection with the examination of our books and
records. Upon our reasonable request, you shall furnish such reports (or
portions thereof) of your system of internal accounting controls applicable to
your duties hereunder. You shall endeavor to obtain and furnish us with such
similar reports as it may reasonably request with respect to each Subcustodian
holding Assets.
Our Representation. We represent that the Financial Assets being placed
in your custody are subject to the 1940 Act, as the same may be amended from
time to time.
Compliance with SEC Rule 17f-5.
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Our Board hereby delegates to you, and you hereby accept the
delegation to you, of the obligation to perform as our "Foreign Custody
Manager" (as that term is defined in SEC Rule 17f-5(a)(2)), both for the
purpose of selecting Eligible Foreign Custodians (as that term is
defined in SEC Rule 17f-5(a)(1)), and as the same may be amended from
time to time, or that have otherwise been made exempt pursuant to an SEC
exemptive order) to hold Assets and of evaluating the contractual
arrangements with such eligible Foreign Custodians (as set forth in SEC
Rule 17f-5(c)(2)); provided that, the term Eligible Foreign Custodian
shall not include any "Compulsory Depository". A Compulsory Depository
shall mean a foreign securities depository or clearing agency the use of
which is compulsory because; (i) its use is required by law or
regulation, (ii) securities cannot be withdrawn from the depository, or
(iii) maintaining securities outside the depository is not consistent
with prevailing custodial practices in the country which the depository
serves. Compulsory Depositories used by you as of the date hereof are
set forth in Schedule C hereto, and as the same may be amended on notice
to us from time to time.
In connection with the foregoing, you shall:
provide written reports notifying our Board of the placement of Assets with
particular Eligible Foreign Custodians (including the Subcustodians listed in
Schedules A and B) and of any material change in the arrangements with such
Eligible Foreign Custodians, with such reports to be provided to our Board at
such times as the Board deems reasonable and appropriate based on the
circumstances of our foreign custody arrangements (and until further notice from
us such reports shall be provided no less frequently than quarterly with respect
to the placement of Assets with particular Eligible Foreign Custodians and
promptly upon the occurrence of any material change in the arrangements with
such Eligible Foreign Custodians);
exercise such reasonable care, prudence and diligence in performing as our
Foreign Custody Manager as a person having responsibility for the safekeeping of
Assets would exercise;
in selecting an Eligible Foreign Custodian, first have determined that Assets
placed and maintained in the safekeeping of such Eligible Foreign Custodian
shall be subject to reasonable care, based on the standards applicable to
custodians in the relevant market, after having considered all factors relevant
to the safekeeping of such Assets, including, without limitation, those factors
set forth in Rule 17f-5(c)(1)(i)-(iv) under the 1940 Act;
determine that the written agreement with the Eligible Foreign Custodian (or, in
the case of an Eligible Foreign Custodian that is a foreign non-Compulsory
Depository or clearing agency, such written agreement, the rules or established
practices or procedures of the foreign non-Compulsory Depository or clearing
agency, or any combination of the foregoing) requires that each Eligible Foreign
Custodian will provide reasonable care for Assets held by that Eligible Foreign
Custodian based on the standards applicable to custodians in the relevant
market; and
have established a system to monitor the continued appropriateness of
maintaining Assets with particular Eligible Foreign Custodians and of the
governing contractual arrangements; it being understood, however, that in the
event that you shall have determined that the existing Eligible Foreign
Custodian in a given country would no longer afford Assets reasonable care and
that no
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other Eligible Foreign Custodian in that country would afford reasonable
care, you shall promptly so advise us and shall then act in accordance with our
instructions with respect to the disposition of the affected Assets. You shall
also monitor Compulsory Depositories and shall advise the Trust of any material
negative change in the performance of, or arrangements with, any Compulsory
Depository as the same would adversely affect the custody of Assets.
Subject to paragraphs (e)(2)(i)-(v) above, you are hereby authorized to
place and maintain Assets on our behalf with Eligible Foreign Custodians
pursuant to a written contract deemed appropriate by you.
Except as expressly provided herein, we shall be solely
responsible to assure that the maintenance of Assets hereunder complies
with the rules, regulations, interpretations and exemptive orders
promulgated by or under the authority of the SEC.
You represent to us that you are a U.S. Bank as defined in Rule
17f-5(a)(7). We represent to you that: (i) the Assets being placed and
maintained in your custody are subject to the 1940 Act, as the same may
be amended from time to time; (ii) our Board has determined that it is
reasonable to rely on you to perform as our Foreign Custody Manager; and
(iii) the Board of the Trust or the investment adviser for each
Portfolio shall have determined that we may maintain Assets in each
country in which our Assets shall be held hereunder and determined to
accept the risks arising therefrom (including, but not limited to, a
country's financial infrastructure (and including any Compulsory
Depository operating in such country), prevailing custody and settlement
practices, laws applicable to the safekeeping and recovery of Assets
held in custody, and the likelihood of nationalization, currency
controls and the like (collectively ("Country Risk")).
You shall provide to us such information relating to Country Risk
as is specified in Schedule D hereto. We hereby acknowledge that: (i)
such information is solely designed to inform us of market conditions
and procedures, but is not intended as a recommendation to invest or not
invest in particular markets; and (ii) you have gathered the information
from sources you consider reliable, but that you shall have no
responsibility for inaccuracies or incomplete information.
The provisions of this Rider applicable to the parties based on
compliance with Rule 17f-5 shall be in force to the extent Rule 17f-5 or
portions or Rule 17f-5 are in effect. To the extent any portion of the
Rule is suspended or revoked, the parties shall not be responsible for
compliance with such portion of the Rule: (a) for the period of time
during which the suspension or revocation is applicable; (b) to the
extent compliance with the applicable portion of the Rule would be
unfeasible; (c) to the extent the parties agree that noncompliance with
any such provision will not harm or impose an undue burden on the Trust
or its shareholders; and (d) to the extent the parties agree in writing
to any change in procedures as a result of the suspension or revocation.
If any portion of Rule 17f-5 is suspended or revoked, those provisions
of the prior Global Custody Rider that were applicable to any duties and
responsibilities of the parties with respect to such provisions of the
Rule will continue in effect, as appropriate, until such provisions are
no longer suspended or revoked or unless otherwise agreed to in writing
by the parties.
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THE CHASE MANHATTAN BANK
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
Date:
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EQ ADVISORS TRUST
By:
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Name : Xxxxx X. Xxxxx
Title: President and Trustee
Date:
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