CUSTODIAN AGREEMENT (FOREIGN AND DOMESTIC SECURITIES)
[Form
of
Custodian Agreement]
(FOREIGN
AND DOMESTIC SECURITIES)
This
Custodian Agreement is made by and between MEDIATECH INVESTMENT CORP.
(“Principal”) and UNION BANK OF CALIFORNIA, N.A. ("Custodian"). Principal
desires that Custodian hold and administer on behalf of Principal certain
Securities (as herein defined). Custodian is willing to do so on the terms
and
conditions set forth in this Agreement. Accordingly, Principal and Custodian
agree as follows:
1. Definitions.
Certain
terms used in this Agreement are defined as follows:
1.1 "Account"
means, collectively, each account maintained by Custodian pursuant to Paragraph
3 of this Agreement.
1.2 "Act"
means the Investment Company Act of 1940, and the rules and regulations
thereunder, all as amended from time to time.
1.3 “Board”
means the Board of Trustees or the Board of Directors of Principal.
1.4 "Eligible
Foreign Custodian" ("Sub-Custodian", or collectively "Sub-Custodians") means
an
entity that is incorporated or organized under the laws of a country other
than
the United States and that is a Qualified Foreign Bank, as defined in
§270.17f-5(a)(5) of the Rule, or a majority-owned direct or indirect subsidiary
of a U.S. Bank or bank-holding company.
1.5 "Eligible
Securities Depository", ("Depository", or collectively "Depositories") means
a
system for the central handling of securities as defined in §270.17f-7(b)(1) of
the Act.
1.6 “Emerging
Market” means each market so identified on Appendix A attached
hereto.
1.7 “Foreign
Market” means each market so identified on Appendix A attached
hereto.
1.8 "Investment
Manager" means an investment advisor or manager identified by Principal in
a
written notice to Custodian as having the authority to direct Custodian
regarding the management, acquisition, or disposition of
Securities.
1.9 “Monitoring
System” means the policies and procedures established by Custodian to fulfill
its duties to monitor the custody risks associated with maintaining securities
with a Sub-Custodian or Depository on a continuing basis, pursuant to this
Agreement.
1.10 "Rules"
mean collectively §270.17(f)-5
and §270.17(f)-7 of the Act, as amended from time to time.
1.11 "Securities"
means domestic or foreign securities or both within the meaning of §2(a)(36) of
the Act and regulations issued by the SEC under §270.17(f) of the Act, as
amended, which are held by Custodian in the Account, and shall include cash
of
any currency or other property of Principal and all income and proceeds of
sale
of such securities or other property of Principal.
2. Representations
2.1 Principal
represents that with respect to any Account established by Principal to hold
Securities, Principal is authorized to enter into this Agreement and to retain
Custodian on the terms and conditions and for the purposes described
herein.
2.2 Custodian
represents that it (i)
is organized under the laws of the United States and has its principal place
of
business in the United States; (ii)
is a bank within the meaning of §202(a)(2) of the Investment Advisers Act of
1940 and §2(a)(5)
of the Act, as amended; (iii)
meets the qualifications required by §17(f)(1)(a) of the Act: and
(iv) has
equity capital in excess of $1 million.
3. Establishment
of Accounts.
Principal
hereby establishes with Custodian, and may in the future establish, one or
more
Accounts in Principal's name. The Account shall consist of Securities delivered
to and receipted for by Custodian or by any Sub-Custodian. Custodian, in its
sole discretion, may reasonably refuse to accept any property now or hereafter
delivered to it for inclusion in the Account. Principal shall be notified
promptly of such refusal and any such property shall be immediately returned
to
Principal. Such Account shall at all times meet the requirements of Section
17(f) of the Act and any rules and regulations promulgated
thereunder.
4. Custody.
Subject to the terms of this Agreement, Custodian shall be responsible for
the
safekeeping and custody of the Securities. Custodian may (i)
retain possession of all or any portion of the Securities, including possession
in a foreign branch or other office of Custodian; or (ii)
retain, in accordance with Paragraph 5 of this Agreement, one or more
Sub-Custodians to hold all or any portion of the Securities. Custodian and
any
Sub-Custodian may, in accordance with Paragraph 5 of this Agreement, deposit
definitive or book-entry Securities with one or more Depositories.
4.1 If
Custodian retains possession of Securities, Custodian shall ensure the
Securities are at all times properly identified as being held for the
appropriate Account. Custodian shall segregate physically the Securities from
other securities or property held by Custodian. Custodian shall not be required
to segregate physically the Securities from other securities or property held
by
Custodian for third parties as Custodian, but Custodian shall maintain adequate
records showing the true ownership of the Securities. Subject at all times
to
the instruction of Principal pursuant of this Agreement, Custodian shall have
no
power or authority to assign, hypothecate, pledge or otherwise dispose of any
Securities, except pursuant to the directive of Principal and only for the
Account of Principal.
4.2 If
Custodian deposits Securities with a Sub-Custodian, Custodian shall maintain
adequate records showing the identity and location of the Sub-Custodian, the
Securities held by the Sub-Custodian, and each Account to which such Securities
belong.
4.3 If
Custodian or any Sub-Custodian deposits Securities with a Depository, Custodian
shall maintain, or shall cause the Sub-Custodian to maintain, adequate records
showing the identity and location of the Depository, the Securities held by
the
Depository, and each Account to which such Securities belong.
4.4 If
Principal directs Custodian to deliver certificates or other physical evidence
of ownership of Securities to any broker or other party, other than a
Sub-Custodian or Depository employed by Custodian for purposes of maintaining
the Account, Custodian's sole responsibility shall be to exercise care and
diligence in effecting the delivery as instructed by Principal. Upon completion
of the delivery, Custodian shall be discharged completely of any further
liability or responsibility with respect to the safekeeping and custody of
Securities so delivered.
4.5 Custodian
shall ensure that (i) the Securities will not be subject to any right, charge,
security interest, lien or claim of any kind in favor of Custodian or any
Sub-Custodian, and (ii) cash deposits may be subject to a claim in favor of
Custodian or any Sub-Custodian relating to fees for custody and
administration.
4.6 Custodian
represents and warrants that its procedures for the preparation and maintenance
of its books and records is designed to comply with the laws and regulations
applicable to Custodian, including those of the 1940 Act per Sections 1 and
2 of
this Agreement. Principal or its designee, shall have reasonable access upon
reasonable notice during regular business hours to the books and records, and
shall be given confirmation of the contents of the books and records, maintained
by Custodian or any Sub-Custodian holding Securities hereunder to verify the
accuracy of such books and records. Custodian shall notify Principal promptly
of
any applicable law or regulation in any country where Securities are held that
would restrict such access or confirmation.
5. Sub-Custodians
and Depositories; Selection and Monitoring.
With
Principal's advance approval, as provided in Subparagraph 5.5 of this Agreement,
Custodian may from time to time select one or more Sub-Custodians and, subject
to the provisions of Subparagraph 5.7, one or more Depositories, to hold
Securities hereunder.
5.1
Custodian shall establish a relationship with each Sub-Custodian governed by
a
written contract providing for the reasonable care of Securities based on the
standards specified in section §270.17(f)-5(c)(1) of the Rule, and including the
provisions set forth in sections §270.17(f)-5(c)(2)(i)(A) through (F) of the
Rule, or provisions which Custodian determines provide the same or greater
protection of Principal's Securities.
5.2
Prior to making its selection of each Sub-Custodian, Custodian shall make a
determination that the Securities will be subject to reasonable care, based
on
the standards applicable to custodians in the relevant market. The Custodian’s
determination shall include a consideration of, (i)
the Sub-Custodian's practices, procedures, and internal controls, including,
but
not limited to, the physical protections available for certificated securities
(if applicable), the method of keeping custodial records, and the security
and
data protection practices; (ii)
the Sub-Custodian's financial strength, general reputation and standing in
the
country in which it is located, its ability to provide efficiently the custodial
services required, and the relative cost of such services; and, (iii)
whether the Sub-Custodian has branch offices in the United States, or consents
to service of process in the United States, in order to facilitate jurisdiction
over and enforcement of judgments against it.
5.3
In making its selection of each Depository, Custodian shall exercise reasonable
care, prudence, and diligence in evaluating the custody risks associated with
maintaining Securities with each Depository under Custodian's custody
arrangements with each Sub-Custodian or Depository.
5.4 Custodian
shall give written notice to Principal of its intention to deposit Securities
with a Sub-Custodian or, directly or through a Sub-Custodian, with a Depository.
The notice shall identify the proposed Sub-Custodian or Depository and shall
include reasonably available information relied on by Custodian in making the
selection.
5.5 Within
30 days of its receipt of a notice from Custodian pursuant to Subparagraph
5.4
of this Agreement regarding Custodian's proposed selection of one or more
Sub-Custodians or Depositories, Principal shall give written notice to Custodian
of Principal's approval or disapproval of the proposed selection. If Principal
has not responded within 30 days of receipt of Custodian's request for approval
of a Sub-Custodian or Depository, Principal will be deemed to have approved
the
proposed selection. Principal hereby approves Custodian's selection and use
of
those Sub-Custodians and Depositories which are identified in Appendix A of
this
Agreement.
5.6
Custodian
shall monitor under its Monitoring System the appropriateness of the continued
custody or maintaining of Principal's Securities with each Sub-Custodian or
Depository.
5.6.1
Custodian
shall evaluate and determine at least annually the continued eligibility of
each
Sub-Custodian and Depository approved by Principal to act as such hereunder.
In
discharging this responsibility, Custodian shall (i)
monitor on a continuing basis the day to day services and reports provided
by
each Sub-Custodian or Depository; (ii)
at least annually, obtain and review the annual financial report published
by
each Sub-Custodian, and to the extent such reports are publicly available,
each
Depository, and other reports on each Sub-Custodian or Depository which
Custodian may obtain from a reputable independent analyst; and, (iii) periodically
as deemed appropriate, physically inspect the operations of each Sub-Custodian
or Depository.
5.6.2
Custodian
shall provide to the Board annually and at such other times as the Board may
reasonably request based on the circumstances of the Principal’s foreign custody
arrangements, written reports notifying the Board of the placement of Securities
of the Principal with a particular foreign Sub-Custodian within a Foreign Market
or an Emerging Market and of any material change in the arrangements (including
any material changes in any contracts governing such arrangements or any
material changes in the established practices or procedures of Depositories)
with respect to Securities of the Principal held by any
Sub-Custodian.
5.6.3 If
Custodian determines that (i)
any
Sub-Custodian or Depository no longer satisfies the applicable requirements
described in Subparagraph 1.4 (in the case of a Sub-Custodian) or Subparagraph
1.5 (in the case of a Depository) of this Agreement; or, (ii)
any Sub-Custodian or Depository is otherwise no longer capable or qualified
to
perform the functions contemplated herein; or, (iii)
any
change in a contract with a Sub-Custodian or any change in established
Depository or market practices or procedures shall cause a custody arrangement
to no longer meet the requirements of the Rule, Custodian
shall promptly give written notice thereof to Principal. The notice shall,
in
addition, either indicate
Custodian's intention to transfer Securities held by the removed Sub-Custodian
or Depository to another Sub-Custodian or Depository previously approved by
Principal, or include a notice pursuant to Subparagraph 5.4 of this Agreement
of
Custodian's intention to deposit Securities with a new Sub-Custodian or
Depository, in either instance such transfer of Securities to be effected as
soon as reasonably practical.
5.7 Notwithstanding
the foregoing sub-sections of this Paragraph 5, Custodian shall have no
responsibility for the selection or monitoring of any Depository or Depository’s
agent (“Compulsory Depository”) (i)
the
use
of which is mandated by law or regulation; (ii)
because
securities cannot be withdrawn from a depository; or (iii)
because
maintaining securities outside the securities depository is not consistent
with
prevailing market practices in the relevant market, provided however, that
Custodian shall notify Principal if Principal has directed a trade in a market
containing a Compulsory Depository, so Principal and Advisor shall have an
opportunity to determine the appropriateness of investing in such market.
5.8 Principal
and Custodian agree that, for purposes of this Paragraph, Custodian’s
determination of appropriateness shall only include custody risk, and shall
not
include any evaluation of “country risk” or systemic risk associated with the
investment or holding of assets in a particular country or market, including,
but not limited to (i)
the use
of Compulsory Depositories, (ii)
the
country’s or market's financial infrastructure, (iii)
the
country’s or market's prevailing custody and settlement practices, (iv)
risk of
nationalization, expropriation or other governmental actions, (v)
regulation of the banking or securities industries, (vi)
currency
controls, restrictions, devaluation or fluctuation, and (vii)
country
or market conditions which may affect the orderly execution of securities
transactions or affect the value of the transactions. Principal and Custodian
further agree that the evaluation of any such country and systemic risks shall
be solely the responsibility of Principal and the Adviser.
6. Registration.
Subject
to any specific instructions from Principal, Custodian shall hold or cause
to be
held all Securities in the name of (i)
Principal,
or (ii)
Custodian,
or any Sub-Custodian or Depository approved by Principal pursuant to Paragraph
5
of this Agreement, or in the name of a nominee of any of them, as Custodian
shall determine to be appropriate under the circumstances.
7. Transactions.
Principal or any Investment Manager from time to time may instruct Custodian
(which in turn shall be responsible for giving appropriate instructions to
any
Sub-Custodian or Depository) regarding the purchase or sale of Securities in
accordance with this Paragraph 7:
7.1 Custodian
shall effect and account for each Securities and currency sale on the date
such
transaction actually settles; provided, however, that Principal may in its
sole
discretion direct Custodian, in such manner as shall be acceptable to Custodian,
to account for Securities and currency purchases and sales on contractual
settlement date, regardless of whether settlement of such transactions actually
occurs on contractual settlement date. Principal may, from time to time, direct
Custodian to change the accounting method employed by Custodian in a written
notice delivered to Custodian at least thirty (30) days prior to the date a
change in accounting method shall become effective.
7.2 Custodian
shall effect purchases by charging the Account with the amount necessary to
make
the purchase and effecting payment to the seller or broker for the securities
or
other property purchased. Custodian shall have no liability of any kind to
any
person, including Principal, except in the case of negligent or intentional
tortuous acts, or willful misconduct, if the Custodian effects payment on behalf
of Principal, and the seller or broker fails to deliver the securities or other
property purchased. Custodian shall exercise such ordinary care and diligence
as
would be employed by a reasonably prudent custodian and due diligence in
examining and verifying the certificates or other indicia of ownership of the
property purchased before accepting them.
7.3 Custodian
shall effect sales by delivering certificates or other indicia of ownership
of
the Property, and, as instructed, shall receive cash for such sales. Custodian
shall have no liability of any kind to any person, including Principal, if
Custodian exercises due diligence and delivers such certificates or indicia
of
ownership and the purchaser or broker fails to effect payment.
7.4 If
a purchase or sale is effected through a Depository, Custodian shall exercise
such ordinary care and diligence as would be employed by a reasonably prudent
custodian and due diligence in verifying proper consummation of the transaction
by the Depository.
7.5 Principal
or, where applicable, Investment Manager, is responsible for ensuring that
Custodian receives timely instructions and/or funds to enable Custodian to
effect settlement of any purchase or sale of Securities or Currency
Transactions. If Custodian does not receive such timely instructions or funds,
Custodian shall have no liability of any kind to any person, including
Principal, for failing to effect settlement. However, Custodian shall use
reasonable efforts to effect settlement as soon as possible after receipt of
appropriate instructions. Principal shall be liable for interest compensation
and/or principal amounts to Custodian and/or its counterparty for failure to
deliver instructions or funds in a timely manner to effect settlements of
foreign exchange funds movement.
7.6 At
the
direction of Principal or the Investment Manager, as the case may be, Custodian
shall convert currency in the Account to other currencies through customary
channels including, without limitation, Custodian or any of its affiliates,
as
shall be necessary to effect any transaction directed by Principal or the
Investment Manager. Principal or the Investment Manager, as the case may be,
acknowledges that (i)
the
foreign currency exchange department is a part of Custodian or one of its
affiliates or subsidiaries; (ii)
the
Account is not obligated to effect foreign currency exchange with Custodian;
(iii)
Custodian will receive benefits for such foreign currency transactions which
are
in addition to the compensation which Custodian receives for administering
the
Account; and (iv)
Custodian will make available the relevant data so that Principal or the
Investment Manager, as the case may be, can determine that the foreign currency
exchange transactions are as favorable to the Account as terms generally
available in arm's length transactions between unrelated parties. Foreign
currency exchange transactions will be performed in accordance with the Union
Bank of California Foreign Exchange Agreement in the form of Exhibit "C" hereto
and incorporated herein by reference and Principal hereby agrees and
acknowledges all of the terms and conditions thereof. If the Principal or
Investment Manager elects to give standing instructions to Custodian to execute
foreign currency exchange transactions on their behalf, or in the event a
foreign currency exchange transaction is initiated in the absence of the
specific Foreign Exchange Agreement, such transaction will be performed at
the
Bank's prevailing rate, in accordance with the usual commercial terms of the
custodian.
7.7 Custodian
shall have no responsibility to manage or recommend investments of the Account
or to initiate any purchase, sale, or other investment transaction in the
absence of instructions from Principal or, where applicable, an Investment
Manager.
8. Market
Transactions; Settlement Dates.
Custodian
has identified certain Foreign Markets and certain Emerging Markets in Appendix
A of this Agreement, which Custodian may amend in writing to Principal from
time
to time.
8.1 Principal
agrees that all settlements of Securities transactions shall be transacted
in
accordance with the local laws, customs, market practices and procedures to
which Sub-Custodians and Depositories are subject in each Foreign and Emerging
Market.
8.2 Notwithstanding
the foregoing Paragraph 7., Principal understands and agrees that settlement
of
Securities transactions is available only on an actual settlement date basis
in
certain Emerging Markets, which are identified in Appendix A, and as may be
amended by Custodian in writing to Principal from time to time.
8.2.1 For
Emerging Markets with actual settlement dates, cash of any currency deposited
or
delivered to the Account shall be available for use by Principal or Investment
Manager only on the actual business day on which funds of good value are
available to Sub-Custodian in the Account.
8.2.2 For
Emerging Markets with actual settlement dates, Securities deposited or delivered
to the Account shall be available for use by Principal or Investment Manager
only on the actual business day on which such Securities are held in the nominee
name or are otherwise subject to the control of, and in a form for good delivery
by, the Sub-Custodian.
9. Capital
Changes; Income.
9.1 Custodian
may, without further instructions from Principal or any Investment Manager,
exchange temporary certificates and may surrender and exchange Securities for
other securities in connection with any reorganization, recapitalization, or
similar transaction in which the owner of the Securities is not given an option.
Custodian has no responsibility to effect any such exchange unless it has
received actual notice of the event permitting or requiring such exchange at
its
office designated in Paragraph 15 of this Agreement or at the office of its
designated agents.
9.2 Custodian,
or its designated agents, are authorized, as Principal's agent, to surrender
against payment maturing obligations and obligations called for redemption,
and
to collect and receive payments of interest and principal, dividends, warrants,
and other things of value in connection with Securities. Except as otherwise
provided in Subparagraph 16.4 of this Agreement, Custodian or its designated
agents shall not be obligated to enforce collection of any item by legal process
or other means.
9.3 Custodian
or its designated agents are authorized to sign for Principal all declarations,
affidavits, certificates, or other documents that may be required to collect
or
receive payments or distributions with respect to Securities. Custodian or
its
designated agents are authorized to disclose, without further consent of
Principal, Principal's identity to issuers of Securities, or the agents of
such
issuers, who may request such disclosure.
10. Notices
re Account Securities.
Custodian
shall notify Principal or, where applicable, the Investment Manager, of any
reorganization, recapitalization, or similar transaction not covered by
Paragraph 9, and any subscription rights, proxies, and other shareholder
information pertaining to the Securities actual notice of which is received
by
Custodian at its office designated in Paragraph 15 of this Agreement or at
the
offices of its designated agents. Custodian's sole responsibility in this regard
shall be to give such notices to Principal or the Investment Manager, as the
case may be, within a reasonable time after Custodian receives them, and
Custodian shall not otherwise be responsible for the timeliness of such notices.
Custodian has no responsibility to respond or otherwise act with respect to
any
such notice unless and until Custodian has received appropriate instructions
from Principal or the Investment Manager.
11. Taxes.
Custodian shall pay or cause to be paid from the Account all taxes and levies
in
the nature of taxes imposed on the Account or the Securities thereof by any
country. Custodian will use its best efforts to give the Investment Manager
advance written notice of the imposition of such taxes. However, Custodian
shall
use reasonable efforts to obtain refunds of taxes withheld on Securities or
the
income thereof that are available under applicable tax laws, treaties, and
regulations.
12. Cash.
Principal may from time to time, direct Custodian to hold Account cash in The
HighMarkSM
Group of mutual funds or in any investment company for which Custodian or its
affiliates or subsidiaries, acts as investment advisor or custodian, or provides
other services. Principal shall designate the particular HighMark fund or such
other above-mentioned fund that Principal deems appropriate for the Account.
Principal or an Investment Manager, where applicable, acknowledges that
Custodian will receive fees for such services which will be in addition to
those
fees charged by Custodian as agent for the Account.
13. Reports.
Custodian
shall give written reports to Principal showing (i)
each transaction involving Securities effected by or reported to Custodian;
(ii)
the identity and location of Securities held by Custodian as of the date of
the
report; (iii)
any transfer of location of Securities not otherwise reported; and (iv)
such other information as shall be agreed upon by Principal and Custodian.
Unless otherwise agreed upon by Principal and Custodian, Custodian shall provide
the reports described in this Paragraph 13 on a monthly basis.
14. Instructions
from Principal.
14.1 Principal
shall certify or cause to be certified to Custodian in writing the names and
specimen signatures of all persons authorized to give instructions, notices,
or
other communications on behalf of Principal or any Investment Manager. Such
certification shall remain effective until Custodian receives notice to the
contrary.
14.2 Principal
or authorized Investment Manager, as the case may be, may give instruction,
notice, or other communication called for by this Agreement to Custodian in
writing, or by telecopy, telex, telegram, or other form of electronic
communication acceptable to Custodian. Unless otherwise expressly provided,
all
Instructions shall continue in full force and effect until canceled or
superseded. Principal or Investment Manager may give and Custodian may accept
oral instructions on an exception basis; provided, however, that Principal
or
Investment Manager shall promptly confirm any oral communications in writing
or
by telecopy or other means permitted hereunder. Principal will hold Custodian
harmless for the failure of Principal or Investment Manager to send confirmation
in writing, the failure of such confirmation to conform to the telephone
instructions received or Custodian’s failure to produce such confirmation at any
subsequent time. Custodian may electronically record any instruction given
by
telephone, and any other telephone discussions with respect to the Custody
Account.
UNION
BANK OF CALIFORNIA INSTITUTIONAL CUSTODY SERVICES
Page
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14.3 All
such communications shall be deemed effective upon receipt by Custodian at
its
address specified in Paragraph 15 of this Agreement, as amended from time to
time. Custodian without liability may rely upon and act in accordance with
any
instruction that Custodian using ordinary care believes has been given by
Principal or an Investment Manager.
14.4 Custodian
may at any time request instructions from Principal and may await such
instructions without incurring liability. Custodian has no obligation to act in
the absence of such requested instructions, but may, however, without liability
take such action as it deems appropriate to carry out the purposes of this
Agreement.
15. Addresses.
Until further notice from either party, all communications called for under
this
Agreement shall be addressed as follows:
If
to Principal:
Attn:
Chief Financial Officer
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
If
to Custodian:
UNION
BANK OF CALIFORNIA, NATIONAL ASSOCIATION
Union
Bank of California Global Custody
Attn:
Xx. Xxxx Xxxx Xxx, Vice President
000
Xxxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
UNION
BANK OF CALIFORNIA INSTITUTIONAL CUSTODY SERVICES
Page
10 of 13
16. Custodian's
Responsibilities and Liabilities:
16.1 Custodian's
duties and responsibilities shall be limited to those expressly set forth in
this Agreement, or as otherwise agreed by Custodian in writing. In carrying
out
its responsibilities, Custodian shall exercise no less than the same degree
of
care and diligence it usually exercises with respect to similar property of
its
own.
16.2 Custodian
(i)
shall not be required to maintain any special insurance for the benefit of
Principal, and (ii)
shall not be liable or responsible for any loss, damage, expense, failure to
perform or delay caused by accidents, strikes, fire, flood, war, riot,
electrical or mechanical or communication line or facility failures, acts of
third parties (including without limitation any messenger, telephone or delivery
service), acts of God, war, government action, civil commotion, fire,
earthquake, or other casualty or disaster or any other cause or causes which
are
beyond Custodian’s reasonable control. However, Custodian shall use reasonable
efforts to replace Securities lost or damaged due to such causes with securities
of the same class and issue with all rights and privileges pertaining thereto.
Custodian shall be liable to Principal for any loss which shall occur as the
result of the failure of a Sub-Custodian to exercise reasonable care with
respect to the safekeeping and custody of assets to the same extent that
Custodian would be liable to Principal if Custodian were holding such securities
and cash in its own premises. In all cases, Custodian’s liability for any act or
failure to act under this Agreement shall be limited to the resulting direct
loss, if any, of Principal. Under no circumstances shall Custodian be liable
for
any consequential, indirect, punitive, or special damage which Principal may
incur or suffer in connection with this Agreement.
16.3 The
parties intend that Custodian shall not be considered a fiduciary of the
Account. Accordingly, Custodian shall have no power to make decisions regarding
any policy, interpretation, practice, or procedure with respect to the Account,
but shall perform the ministerial and administrative functions described in
this
Agreement as provided herein and within the framework of policies,
interpretations, rules, practices, and procedures made by Principal or an
Investment Manager, where applicable, as the same shall be reflected in
instructions to Custodian from Principal or any Investment Manager.
16.4 Custodian
shall not be required to appear in or defend any legal proceedings with respect
to the Account or the Securities unless Custodian has been indemnified to its
reasonable satisfaction against loss and expense (including reasonable
attorneys' fees).
16.5 With
respect to legal proceedings referred to in Subparagraph 16.4 of this agreement,
Custodian may consult with counsel acceptable to it after written notification
to Principal concerning its duties and responsibilities under this Agreement,
and shall not be liable for any action taken or not taken in good faith on
the
advice of such counsel.
UNION
BANK OF CALIFORNIA INSTITUTIONAL CUSTODY SERVICES
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17. Indemnities.
17.1 Principal
hereby agrees to indemnify Custodian against all liability, claims, demands,
damages, losses, and costs, including reasonable attorneys' fees and expenses
of
legal proceedings, resulting from Custodian's compliance with instructions
from
Principal or any Investment Manager and the terms of this Agreement, except
where Custodian has acted with negligence or willful misconduct.
17.2 Custodian's
right to indemnity under Subparagraph 17.1 of this Agreement shall survive
the
termination of this Agreement.
18 Compensation;
Expenses.
Principal
shall reimburse Custodian for all reasonable out-of-pocket expenses and
processing costs incurred by Custodian in the administration of the Account
including, without limitation, reasonable counsel fees incurred by Custodian
pursuant to Subparagraph 16.5 of this Agreement. Principal also shall pay
Custodian reasonable compensation for its services hereunder as specified in
Appendix B. Custodian shall be entitled to withdraw such expenses or
compensation from the cash deposits in the Account if Principal fails to pay
the
same to Custodian within 45 days after Custodian has sent an appropriate billing
to Principal; provided however, that Custodian will give Principal ten (10)
days
prior written notice before withdrawing such funds.
19. Amendment;
Termination.
This Agreement may be amended at any time by a written instrument signed by
the
parties. Either party may terminate this Agreement and the Account upon 90
days'
written notice to the other unless the parties agree on a different time period.
Upon such termination, Custodian shall deliver or cause to be delivered the
Securities, to a successor custodian designated by Principal or, if a successor
custodian has not accepted an appointment by the effective date of termination
of the Account, to Principal. Upon completion of such delivery Custodian shall
be discharged of any further liability or responsibility with respect to the
Securities so delivered.
20. Successors.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors in interest. Without consent of the parties, this
agreement cannot be assigned to any third party.
21. Governing
Law.
The
validity, construction, and administration of this Agreement shall be governed
by the applicable laws of the United States from time to time in force and
effect and, to the extent not preempted by such laws of the United States,
by
the laws of the State of California from time to time in force and effect.
In
the event of a conflict with applicable laws of the State of California, or
any
provision herein, and the Act, the Act shall control. Any action or proceeding
to enforce, interpret or adjudicate the rights and responsibilities of the
parties hereunder shall be commence in the State or Federal courts located
in
the State of California.
UNION
BANK OF CALIFORNIA INSTITUTIONAL CUSTODY SERVICES
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22. Effective
Date.
This Agreement shall be effective as of the date appearing below, and shall
supersede any prior or existing agreements between the parties pertaining to
the
subject matter hereof.
Date:
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By:
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"Principal"
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Authorized
Signature
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Name
& Title
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Date
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Authorized
Signature
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Name
& Title
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Date
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By:
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Union
Bank of California, National Association, "Bank"
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Authorized
Signature
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Name
& Title
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Date
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Authorized
Signature
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Name
& Title
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Date
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UNION BANK OF CALIFORNIA INSTITUTIONAL CUSTODY SERVICES | |
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