EXHIBIT 24(B)(8)(ii)
SECURITIES, TRUST & INFORMATION SERVICES
(GCIC - BRUSSELS)
GLOBAL CUSTODY AGREEMENT
JPMORGAN
GLOBAL CUSTODY AGREEMENT
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AGREEMENT dated as of Sept. 12, 1994 between Xxxxxx Guaranty Trust
Company of New York (the "Custodian"), acting through its office at 00 xxxxxx
xxx Xxxx, Xxxxxxxx, Xxxxxxx, and Delaware Pooled Trust, Inc. - The Global Fixed-
Income Portfolio (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
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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.
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"Securities Depository" means any securities depository, book-entry
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.
"Tax" has the meaning set forth in Section 9.
"Unencumbered Securities Account" has the meaning set forth in Section
14.
2. Representations, Warranties and Covenants of the Client. The
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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); 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. The Client represents, warrants and
covenants that the Custodian shall be entitled to transfer 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
ceases to be true and correct as of any date after the date hereof.
3. Securities Accounts. The Client hereby establishes with the
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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
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(a) Authority to Hold Securities. Subject to the terms and
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conditions of this Agreement, the Client hereby authorizes the Custodian to hold
any Securities received from time to
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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
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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
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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
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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
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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
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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.
5. Cash Account.
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(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.
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6. Instructions by the Client
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(a) Generally. The Client shall give an Authorized Instruction
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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
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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
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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 a 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.
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(a) Collections. Unless the Custodian has received an
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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
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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
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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
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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
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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
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consequences of any such action.
8. Reporting.
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(a) Statements. The Custodian shall mail, or cause to be
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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 30 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.
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(b) Access to Records. The Custodian shall allow the Client and its
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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
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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 Client shall be liable for all taxes, assessments, duties
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and other governmental charges, including any interest or penalty with respect
thereto ("Taxes"), with respect to any Cash, Securities or other property held
on behalf of the Client or any transaction related thereto. The Client shall
indemnify the Custodian and each Subcustodian for the amount of any Tax that the
Custodian, any such Subcustodian or any other withholding agent 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). The Custodian shall, or shall instruct the
applicable Subcustodian or other withholding agent to, withhold the amount of
any Tax which is required to be withheld under applicable law upon collection of
any dividend, interest or other distribution made with respect to any Security
and any proceeds or income from the sale, loan or other transfer of any
Security. In the event that the Custodian or any Subcustodian is required under
applicable law to pay any Tax on behalf of the Client, the Custodian is hereby
authorized to withdraw Cash from any subaccount of the Cash Account in the
amount required to pay such Tax and to use such Cash, or to remit such Cash to
the appropriate Subcustodian, for the timely payment of such Tax in the manner
required by applicable law. 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 directly 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 Client is eligible,
pursuant to applicable law or to the provisions of any tax treaty, for a reduced
rate of, or exemption from, any Tax which is otherwise required to be withheld
or paid on behalf of the Client under any applicable law, the Custodian shall,
or shall instruct the applicable Subcustodian or the withholding agent 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 shall have
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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 or treaty. In the event that a reduced rate of, or exemption
from, any Tax is obtainable only by means of an application for refund, then the
Custodian and the applicable Subcustodian shall, upon request, assist the Client
with such applications. Neither the Custodian nor any Subcustodian shall have
any responsibility for the accuracy or validity of any forms or documentation
provided by the Client to the Custodian hereunder, and the Client hereby
indemnifies
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and agrees to hold harmless the Custodian and each Subcustodian 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.
10. Responsibilities; Indemnification by the Custodian.
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(a) Standard of Care. The Custodian shall use reasonable care
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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. The Custodian shall comply
with provisions of the Investment Company Act of 1940 with respect to provisions
which directly apply to the services provided to the Client hereunder.
(b) Insurance. The Custodian shall, and shall require each
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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
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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.
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(a) Generally. The Custodian shall be responsible for the
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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.
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(b) Consequential Damages. Under no circumstances shall the
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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
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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 internationally-recognized investment data service
selected by the Custodian.
(d) Authorized Instructions. Neither the Custodian nor any
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Subcustodian shall be liable for any action taken upon an Authorized
Instruction.
(e) Payment and Delivery Instructions. In some securities
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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
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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
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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.
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(h) Force Majeure. Notwithstanding any other provision
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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
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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.
-11-
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, without limitation, legal
expenses and attorney's fees) 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 other than an
Unencumbered 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. For purposes of this Agreement, an "Unencumbered
Securities Account" means any Securities Account that is designated by the
Client, and acknowledged by the Custodian in writing, as containing only
securities held for the account of the Client's customers and any other
Securities Account as to which the Client and the Custodian have agreed in
writing shall be considered an Unencumbered Securities Account.
-12-
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 (other than Unencumbered 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 (other than an Unencumbered 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 (other than
an Unencumbered 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 (other
than an Unencumbered 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
-13-
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 E 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 B 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 (other than
----------------------
Appendix A, which may be amended by the Custodian in accordance with Section
4(e)) 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 the 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
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
-14-
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 and supersedes any and all prior agreements and
understanding, oral or written, relating to the subject matter hereof.
26. Confidentiality. The parties hereto agree not to disclose to any
---------------
other party and to keep confidential the terms and conditions of this Agreement,
any amendment hereof, and any Exhibit, Attachment or Appendix hereto, including
but not limited to service level profiles. The Client agrees to cause all
Authorized Persons to comply with the provisions of this Section 26 and Appendix
E. In the event that either the Client (including any Authorized Person) or the
Custodian breaches any provision of this Section 26 or Appendix E, the other
party shall be entitled to temporary and permanent injunctive relief against the
other party (or such Authorized Person, as the case may be) without the
necessity of proving actual damages. 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, 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
-15-
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 provisions of this
Agreement shall supersede the provisions of Article 4A of the Uniform Commercial
Code. 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 C, to receive Security Procedure
materials from the Custodian. The Client may amend Appendix C from time to time
upon not less than 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 D or hereafter identified by the Custodian in
writing as communication products (the "Communication Products"), for the
respective terms set forth in Appendix D and at the respective locations set
forth in Appendix D, 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 E.
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 Delaware Pooled Trust, Inc. -
of New York The Global Fixed-Income Portfolio
By:__________________________ By:___________________________
Title:_______________________ Title:________________________
-16-
APPENDIX A
Global Custody Network
----------------------
Country Subcustodian Depository/1/
------- ------------ -------------
Argentina Xxxxxx Guaranty Trust Co. of New Caja de Valores
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. of New CIK (Caisse Interprofessionnelle de
York Depots
- Brussels Office et de Virements de Titres)
Euroclear
Brazil Xxxxxx Guaranty Trust Co. of New BOVESPA (Bolsa de Valores de Sao
York Paulo; equities)
- Sao Paulo Office
BVRJ (Bolsa de Valores de Rio de Janeiro;
equities)
CETIP (Central de Custodia e Liquidacoa
Financiera de Titulos; corporate bonds)
SELIC (Sistema Especial de Liquidacao e
Custodia; government securities)
Canada Canadian Imperial Bank of Commerce CDS (Canadian Depository for Securities)
Chile Citibank, N.A.
Czech Republic Ceskoslovenska Obchodni Banka SCP (Stredisko Cennych Papiur)
____________________________________
/2/ In addition to the central bank, if applicable.
-1-
Country Subcustodian Depository/1/
------- ------------ -------------
People's Republic of Hongkong and Shanghai Banking Corporation SSCCRC (Shanghai Securities Central
China - Shanghai and Clearing and Registration Corp.)
Shenzhen
For Shenzhen, either Hongkong and
Shanghai Banking Corporation, Standard
Chartered Bank or Citibank, N.A.,
depending on the issue
Denmark Den Danske Bank VP (Vaerdipapircentralen; Danish
Securities Centre)
Finland Union Bank of Finland
France Xxxxxx Guaranty Trust Co. of New York SICOVAM (Societe Interprofessionnelle
- 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. of New York Monte Titoli S.p.A.
- Milan Office
Japan The Fuji Bank, Ltd. JASDEC (Japanese Securities Depository
Center)
_______________________________________
/1/ In addition to the central bank, if applicable.
-2-
Country Subcustodian Depository/1/
------- ------------ -------------
JSA (Japan Securities Agency/2/)
Korea Bank of Seoul KSDC (Korea Securities Depository
Corporation)
Luxembourg Banque Internationale a Luxembourg, X.X. XXXXX (Central de Livraison des
Valeurs
Mobilieres)
Malaysia Hongkong Bank Malaysia Berhad CDS (Central Depository System)
Mexico Citibank, N.A. Indeval
Netherlands Bank Labouchere nv 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)
Peru Citibank, N.A. Caja de Valores (CAVAL)
Philippines Hongkong and Shanghai Banking
Corporation
Poland Bank Handlowy w Warszawie S.A. National Depository of Securities
Portugal Banco Comercial Portugues Central Depository Agency and
Nationwide Clearing System
Singapore Development Bank of Singapore (CDP) Central Depository Pte
South Africa The First National Bank of Southern Central Depository Limited
Africa
Spain Xxxxxx Guaranty Trust Co. of New York SCL (Servicio Nacional de Compensacion
- Madrid Office y Liquidacion de Valores)
Espaclear
_______________________________________
/1/ In addition to the central bank, if applicable.
/2/ JSA currently does not meet 17f-5 capital requirements.
-3-
Country Subcustodian Depository/1/
------- ------------ -------------
Sri Lanka Hongkong and Shanghai Banking CDS (Central Depository System)
Corporation
Sweden Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen; Securities
Register Centre)
Switzerland Bank Leu SEGA (Schweizerische Effekten - Giro
AG)
Taiwan Hongkong and Shanghai Banking TSCD (Tiawan Securities Central
Corporation Depository)
Thailand Hongkong and Shanghai Banking SDC (Share Depository Center)
Corporation
Turkey Citibank, N.A. Istanbul Stock Exchange Central
Ottoman Bank Depository
United Kingdom Xxxxxx Guaranty Trust Co. of New TALISMAN (Transfer, Accounting and
York Lodgement for Investors Stock
- London Office Management for Jobbers) - Sepon Limited
CGO (Central Gilts Office)
CMO (Central Money Markets Office)
ESO (European Settlements Office)
United States Xxxxxx Guaranty Trust Co. of New York The Depository Trust Co.
The Participants Trust Co.
Venezuela Citibank, N.A.
_______________________________________
/1/ In addition to the central bank, if applicable.
-0-
XXXXXXXX X
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
Delaware Group
0000 xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Mr. Xxxx X'Xxxxxx
---------
-1-
APPENDIX C
Persons Authorized by the Client to Receive Security Procedure Materials
------------------------------------------------------------------------
[To be provided by Client]
-1-
APPENDIX D
Communication Products
----------------------
NUMBER
COMMUNICATIONS TERM OF
PRODUCT (CHECK ONE) COPIES LOCATION(S)
[_] As long as this
Agreement remains in
effect
[_] One year with automatic
renewal for successive
one year terms thereafter
[_] Fixed term until
_______________.
[_] As long as this
Agreement remains in
effect
[_] One year with automatic
renewal for successive
one year terms thereafter
[_] Fixed term until
_______________.
[_] As long as this
Agreement remains in
effect
[_] One year with automatic
renewal for successive
one year terms thereafter
[_] Fixed term until
_______________.
[_] As long as this
Agreement remains in
effect
[_] One year with automatic
renewal for successive
one year terms thereafter
[_] Fixed term until
_______________.
============================================================================
-1-
APPENDIX E
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
-1-
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
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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
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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.
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