NOVATION AND TRANSFER AGREEMENT
EXHIBIT 28(g)(5)
THIS NOVATION AND TRANSFER AGREEMENT (this “Agreement”), dated as of April 2, 2009, is made among Custodial Trust Company (“CTC”), JPMorgan Chase Bank, N.A. (“JPM”), X.X. Xxxxxx Clearing Corp. (“Broker”) and the undersigned customer of Broker (“Customer”).
WHEREAS, CTC, Broker and Customer entered into a Special Custody Account Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Special Custody Account Agreement”), to govern their rights and obligations with respect to one or more special custody accounts maintained at CTC for the Broker and Customer (collectively, the “Special Custody Account”); and
WHEREAS, as of June 15, 2009 (the “Effective Date”) CTC, Broker, JPM and Customer wish to substitute, by novation, JPM in place of CTC for all purposes of the Special Custody Account Agreement.
NOW, THEREFORE, CTC, Broker, JPM and Customer agree as follows:
1. Novation. As of the Effective Date, the Special Custody Account Agreement is hereby novated with the effect that JPM is substituted for CTC for all purposes of the Special Custody Account Agreement.
2. Assumption and Release. As of the Effective Date, JPM hereby accepts and assumes all of the rights and obligations of CTC under the Special Custody Account Agreement, and CTC hereby relinquishes and is hereby released and discharged from its rights and obligations under the Special Custody Account Agreement. As of the Effective Date, each of Broker and Customer shall have the same rights against, and owe the same obligations to, JPM that Broker and Customer, respectively, had against, and owed to, CTC in connection with the Special Custody Account Agreement prior to the Effective Date.
3. Consent and Instruction to Transfer. In connection with the novation contemplated herein, as of the Effective Date, each of Broker and Client instructs CTC and JPM, respectively, to take any action reasonably necessary to transfer all of the assets credited to, and debits debited to, the Special Custody Account maintained by CTC immediately prior to the Effective Date, to JPM to debit and credit, respectively, to one or more special custody accounts maintained by JPM pursuant to the Special Custody Account Agreement, on and immediately after the Effective Date. CTC and JPM hereby consent to such transfer.
4. Applicable Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York without reference to any choice of law rules that would result in the application of the law of any other jurisdiction.
5. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same agreement. A facsimile copy of an executed counterpart hereof shall have the same force and effect as an original executed counterpart hereof.
[Signatures follow on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Novation and Transfer Agreement to be executed by their respective duly authorized representatives as of the date first written above.
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CUSTODIAL TRUST COMPANY
By: /s/ Xxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive Officer
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___________________________________
Name of Customer
By:
Name:
Title:
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JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
X.X. XXXXXX CLEARING CORP
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
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