Investment Manager Account Title/Number Inst. F/X
Exhibit 10.5
AGREEMENT, dated as of
December 12, 2008 between DB-New York Nuclear Uranium Fund (“Customer”) and The
Bank of New York Mellon (“Custodian”).
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following words shall have the meanings set forth
below:
1. “Authorized Person” shall be
any person, whether or not an officer or employee of Customer, duly authorized
by Customer to give Oral and/or Written Instructions with respect to one or more
Accounts, such persons to be designated in a Certificate of Authorized Persons
which contains a specimen signature of such person.
2. “BNY Affiliate” shall mean any
office, branch or subsidiary of The Bank of New York Mellon
Corporation.
3. “Book-Entry System” shall mean
the Federal Reserve/Treasury book-entry system for receiving and delivering
securities, its successors and nominees.
4. “Business Day” shall mean any
day on which Custodian, Book-Entry System and relevant Depositories are open for
business.
5. “Depository” shall include the
Book-Entry System, the Depository Trust Company, Euroclear, Clearstream Banking
S.A. and any other securities depository, book-entry system or clearing agency
(and their respective successors and nominees) authorized to act as a securities
depository, book-entry system or clearing agency pursuant to applicable law and
identified to Customer from time-to-time.
6. “Oral Instructions” shall mean
instructions received verbally by Custodian.
7. “Securities” shall include,
when applicable and from time-to-time, without limitation, any common stock and
other equity securities, bonds, debentures and other debt securities, notes,
mortgages or other obligations, and any instruments representing rights to
receive, purchase, or subscribe for the same, or representing any other rights
or interests therein (whether represented by a certificate or held in a
Depository or a Subcustodian).
8. “Subcustodian” shall mean a
bank or other financial institution (other than a Depository) which is utilized
by Custodian in connection with the purchase, sale or custody of Securities
hereunder and identified to Customer from time-to-time.
9. “Written
Instructions”
shall mean written communications actually received by Custodian by
S.W.I.F.T., tested telex, letter, facsimile transmission, or other method or
system specified by Custodian as available for use in connection with the
services hereunder.
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ARTICLE
II
APPOINTMENT
OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS
AND WARRANTIES
1. Customer
hereby appoints Custodian as custodian of all Securities and cash at any time
delivered to Custodian during the term of this Agreement, and authorizes
Custodian to hold Securities in registered form in its name or the name of its
nominees. Custodian hereby accepts such appointment and agrees to
establish and maintain one or more securities accounts and cash accounts in
which Custodian will hold Securities and cash as provided
herein. Such accounts (each, an “Account”;
collectively, the “Accounts”) shall be
in the name of Customer.
2. Customer
hereby represents and warrants, which representations and warranties shall be
continuing and shall be deemed to be reaffirmed upon each Oral or Written
Instruction given by Customer, that:
(a) Customer
is duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) This
Agreement has been duly authorized, executed and delivered by Customer,
constitutes a valid and legally binding obligation of Customer, enforceable in
accordance with its terms, and no statute, regulation, rule, order, judgment or
contract binding on Customer prohibits Customer’s execution or performance of
this Agreement; and
(c) Either
Customer owns the Securities in the Accounts free and clear of all liens,
claims, security interests and encumbrances (except those granted herein) or, if
the Securities in an Account are owned beneficially by others, Customer has the
right to pledge such Securities to the extent necessary to secure Customer’s
obligations hereunder, free of any right of redemption or prior claim by the
beneficial owner. Custodian’s security interest pursuant to Article V
hereof shall be a first lien and security interest subject to no setoffs,
counterclaims or other liens prior to or on a parity with it in favor of any
other party (other than specific liens granted preferred status by statute), and
Customer shall take any and all additional steps which are required to assure
Custodian of such priority and status, including notifying third parties or
obtaining their consent to, Custodian’s security interest.
ARTICLE
III
CUSTODY
AND RELATED SERVICES
1. (a) Subject
to the terms hereof, Customer hereby authorizes Custodian to hold any Securities
received by it from time-to-time for Customer’s account. Custodian
shall be entitled to utilize Depositories and Subcustodians to the extent
possible in connection with its performance hereunder. Securities and
cash deposited by Custodian in a Depository will be held subject to the rules,
terms and conditions of such Depository. Securities and cash held
through Subcustodians shall be held subject to the terms and conditions of
Custodian’s agreements with such Subcustodians. Subcustodians may be
authorized to hold Securities in central securities depositories or clearing
agencies in which such Subcustodians participate. Unless otherwise
required by local law or practice or a particular subcustodian agreement,
Securities deposited with Subcustodians will be held in a commingled account in
the name of Custodian as custodian or trustee for its
customers. Custodian shall identify on its books and records the
Securities and cash belonging to Customer, whether held directly or indirectly
through Depositories or Subcustodians.
(b) Unless
applicable law otherwise requires, Custodian shall hold Securities indirectly
through a Subcustodian 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 its creditors, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities or for funds advanced on behalf of Customer by such
Subcustodian, and (ii) beneficial ownership of the Securities is freely
transferable without the payment of money or value other than for safe custody
or administration.
2. Custodian
shall furnish Customer with an advice of daily transactions and a monthly
summary of all transfers to or from the Accounts. Customer may elect
to receive advices, confirmations, reports or statements electronically through
the Internet to an email address specified by it for such purpose. By
electing to use the Internet for this purpose, Customer acknowledges that such
transmissions are not encrypted and therefore are insecure. Customer
further acknowledges that there are other risks inherent in communicating
through the Internet such as the possibility of virus contamination and
disruptions in service, and agrees that Custodian shall not be responsible for
any loss, damage or expense suffered or incurred by Customer or any person
claiming by or through Customer as a result of the use of such
methods.
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3. With
respect to all Securities held hereunder, Custodian shall, unless otherwise
instructed to the contrary:
(a) Receive
all income and other payments and advise Customer as promptly as practicable of
any such amounts due but not paid;
(b) Present
for payment and receive the amount paid upon all Securities which may mature and
advise Customer as promptly as practicable of any such amounts due but not
paid;
(c) Forward
to Customer copies of all information or documents that it may receive from an
issuer of Securities which, in the opinion of Custodian, are intended for the
beneficial owner of Securities;
(d) Execute,
as custodian, any certificates of ownership, affidavits, declarations or other
certificates under any tax laws now or hereafter in effect in connection with
the collection of bond and note coupons;
(e) Hold
directly or through a Depository or Subcustodian all rights and similar
Securities issued with respect to any Securities credited to an Account
hereunder; and
(f) Endorse
for collection checks, drafts or other negotiable instruments.
4. (a) Custodian
shall notify Customer of such rights or discretionary actions or of the date or
dates by when such rights must be exercised or such action must be taken
provided that Custodian has received, from the issuer or the relevant Depository
(with respect to Securities issued in the United States) or from the relevant
Subcustodian, Depository or a nationally or internationally recognized bond or
corporate action service to which Custodian subscribes, timely notice of such
rights or discretionary corporate action or of the date or dates such rights
must be exercised or such action must be taken. Absent actual receipt
of such notice, Custodian shall have no liability for failing to so notify
Customer.
(b) Whenever
Securities (including, but not limited to, warrants, options, tenders, options
to tender or non-mandatory puts or calls) confer optional rights on Customer or
provide for discretionary action or alternative courses of action by Customer,
Customer shall be responsible for making any decisions relating thereto and for
directing Custodian to act. In order for Custodian to act, it must
receive Customer’s Written Instructions at Custodian’s offices, addressed as
Custodian may from time-to-time request, not later than noon at least two (2)
Business Days prior to the last scheduled date to act with respect to such
Securities (or such earlier date or time as Custodian may notify
Customer). Absent Custodian’s timely receipt of such Written
Instructions, Custodian shall not be liable for failure to take any action
relating to or to exercise any rights conferred by such Securities.
5. All
voting rights with respect to Securities, however registered, shall be exercised
by Customer or its designee. For Securities issued in the United
States, Custodian’s only duty shall be to mail to Customer any documents
(including proxy statements, annual reports and signed proxies) received by
Custodian relating to the exercise of such voting rights. With
respect to Securities issued outside of the United States, Custodian’s only duty
shall be to provide Customer with access to a provider of global proxy services
at Customer’s request. Customer shall be responsible for all costs
associated with its use of such services.
6. Custodian
shall promptly advise Customer upon its notification of the partial redemption,
partial payment or other action affecting less than all Securities of the
relevant class. If Custodian, any Subcustodian or Depository holds
any such Securities in which Customer has an interest as part of a fungible
mass, Custodian, such Subcustodian or Depository may select the Securities to
participate in such partial redemption, partial payment or other action in any
non-discriminatory manner that it customarily uses to make such
selection.
7. Custodian
shall not under any circumstances accept bearer interest coupons which have been
stripped from United States federal, state or local government or agency
securities unless explicitly agreed to by Custodian in writing.
8. Customer
shall be liable for all taxes, assessments, duties and other governmental
charges, including any interest or penalty with respect thereto (“Taxes”), with respect
to any cash or Securities held on behalf of Customer or any transaction related
thereto. Customer shall indemnify Custodian and each Subcustodian for
the amount of any Tax that 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 Customer (including any payment of
Tax required by reason of an earlier failure to withhold). 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 Custodian or any
Subcustodian is required under applicable law to pay any Tax on behalf
of
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Customer,
Custodian is hereby authorized to withdraw cash from any 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
cash accounts is not sufficient to pay such Tax, Custodian shall promptly notify
Customer of the additional amount of cash (in the appropriate currency)
required, and Customer shall directly deposit such additional amount in the
appropriate cash account promptly after receipt of such notice, for use by
Custodian as specified herein. In the event that Custodian reasonably
believes that Customer 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 Customer under
any applicable law, Custodian shall, or shall instruct the applicable
Subcustodian or 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
Custodian shall have received from Customer 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
Custodian reasonably believes that a reduced rate of, or exemption from, any Tax
is obtainable only by means of an application for refund, Custodian and the
applicable Subcustodian shall have no responsibility for the accuracy or
validity of any forms or documentation provided by Customer to Custodian
hereunder. Customer hereby agrees to indemnify and hold harmless
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, and such obligation to
indemnify shall be a continuing obligation of Customer, its successors and
assigns, notwithstanding the termination of this Agreement.
9. (a) For
the purpose of settling Securities and foreign exchange transactions, Customer
shall provide Custodian with sufficient immediately available funds for all
transactions by such time and date as conditions in the relevant market
dictate. As used herein, “sufficient immediately available funds”
shall mean either (i) sufficient cash denominated in the currency of Customer’s
home jurisdiction to purchase the necessary foreign currency, or (ii) sufficient
applicable foreign currency to settle the transaction. Custodian
shall provide Customer with immediately available funds each day which result
from the actual settlement of all sale transactions, based upon advices received
by Custodian from its Subcustodians and Depositories. Such funds
shall be in the currency of Customer’s home jurisdiction or such other currency
as Customer may specify to Custodian.
(b) Any
foreign exchange transaction effected by Custodian in connection with this
Agreement may be entered with Custodian or a BNY Affiliate acting as principal
or otherwise through customary banking channels. Customer may issue
standing Written Instructions with respect to foreign exchange transactions but
Custodian may establish rules or limitations concerning any foreign exchange
facility made available to Customer. Customer shall bear all risks of
investing in Securities or holding cash denominated in a foreign
currency. Without limiting the foregoing, Customer shall bear the
risks that rules or procedures imposed by Depositories, exchange controls, asset
freezes or other laws, rules, regulations or orders shall prohibit or impose
burdens or costs on the transfer to, by or for the account of Customer of
Securities or cash held outside Customer’s jurisdiction or denominated in a
currency other than its home jurisdiction or the conversion of cash from one
currency into another currency. Custodian shall not be obligated to
substitute another currency for a currency whose transferability, convertibility
or availability has been affected by such law, regulation, rule or
procedure. Neither Custodian nor any Subcustodian shall be liable to
Customer for any loss resulting from any of the foregoing events.
10. To
the extent that Custodian has agreed to provide pricing or other information
services in connection with this Agreement, Custodian is authorized to utilize
any vendor (including brokers and dealers of Securities) reasonably believed by
Custodian to be reliable to provide such information. Customer
understands that certain pricing information with respect to complex financial
instruments (e.g., derivatives)
may be based on calculated amounts rather than actual market transactions and
may not reflect actual market values, and that the variance between such
calculated amounts and actual market values may or may not be
material. Where vendors do not provide information for particular
Securities or other property, an Authorized Person may advise Custodian
regarding the fair market value of, or provide other information with respect
to, such Securities or property as determined by it in good
faith. Custodian shall not be liable for any loss, damage or expense
incurred as a result of errors or omissions with respect to any pricing or other
information utilized by Custodian hereunder.
11. As
an accommodation to Customer, Custodian may provide consolidated recordkeeping
services pursuant to which Custodian reflects on Account statements Securities
positions for which Custodian has no safekeeping or other responsibility under
this Agreement (“Non-Custody
Securities”). Non-Custody Securities shall be designated on
Custodian’s books as “shares not held” or by other similar
characterization. Customer acknowledges and agrees that Custodian
shall rely, without independent verification, on information provided by
Customer regarding Non-Custody Securities (including but not limited to Account
positions and market valuations) and shall have no responsibility whatsoever
with respect to Non-Custody Securities or the accuracy of any information
maintained on Custodian’s books or set forth on account statements concerning
Non-Custody Securities.
12. From
time-to-time Custodian may make available to Customer or its agent(s) certain
investment and analytic tools (“Tools”) which may be
used to evaluate Securities in the Account and compliance with Customer’s
investment guidelines and
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investment
criteria. Such Tools, whether or not modified to meet specific needs
of Customer, are provided “AS IS” and CUSTODIAN DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TOOLS, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS
FOR A PARTICULAR PURPOSE. ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, CUSTODIAN SHALL NOT BE LIABLE FOR ANY LOSS, EXPENSE, DAMAGE,
LIABILITY OR CLAIM SUFFERED OR INCURRED BY CUSTOMER OR ANY OTHER PERSON AS A
RESULT OF USE OF, OR RELIANCE UPON, ANY TOOLS BY CUSTOMER OR ANY OTHER
PERSON.
13. Until
such time as Custodian receives a certificate to the contrary with respect to a
particular Security, Custodian may release the identity of the Trust to an
issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct communications
between such issuer and shareholder.
ARTICLE
IV
PURCHASE
AND SALE OF SECURITIES;
CREDITS
TO ACCOUNT
1. Promptly
after each purchase or sale of Securities by Customer, an Authorized Person
shall deliver to Custodian Written Instructions specifying all information
necessary for Custodian to settle such purchase or sale. Custodian
shall account for all purchases and sales of Securities on the actual settlement
date unless otherwise agreed by Custodian.
2. Customer
understands that when Custodian is instructed to deliver Securities against
payment, delivery of such Securities and receipt of payment therefor may not be
completed simultaneously. Customer assumes full responsibility for
all credit risks involved in connection with Custodian’s delivery of Securities
pursuant to instructions of Customer.
3. Custodian
may, as a matter of bookkeeping convenience or by separate agreement with
Customer, credit the Account with the proceeds from the sale, redemption or
other disposition of Securities or interest, dividends or other distributions
payable on Securities prior to its actual receipt of final payment
therefor. All such credits shall be conditional until Custodian’s
actual receipt of final payment and may be reversed by Custodian to the extent
that final payment is not received. Payment with respect to a
transaction will not be “final” until Custodian shall have received immediately
available funds which under applicable local law, rule and/or practice are
irreversible and not subject to any security interest, levy or other
encumbrance, and which are specifically applicable to such
transaction.
ARTICLE
V
OVERDRAFTS
OR INDEBTEDNESS
1. If
Custodian in its sole discretion advances funds in any currency hereunder or
there shall arise for whatever reason an overdraft in an Account (including,
without limitation, overdrafts incurred in connection with the settlement of
securities transactions, funds transfers or foreign exchange transactions) or if
Customer is for any other reason indebted to Custodian, Customer agrees to repay
Custodian on demand the amount of the advance, overdraft or indebtedness plus
accrued interest at a rate ordinarily charged by Custodian to its institutional
custody customers in the relevant currency.
2. In
order to secure repayment of Customer’s obligations to Custodian hereunder,
Customer hereby pledges and grants to Custodian a continuing lien and security
interest in, and right of set-off against, all of Customer’s right, title and
interest in and to the Accounts and the Securities, money and other property now
or hereafter held in the Accounts (including proceeds thereof), and any other
property at any time held by it for the account of Customer. In this
regard, Custodian shall be entitled to all the rights and remedies of a pledgee
and secured creditor under applicable laws, rules or regulations as then in
effect.
ARTICLE
VI
CONCERNING
CUSTODIAN
1. (a) Except
as otherwise expressly provided herein, Custodian shall not be liable for any
costs, expenses, damages, liabilities or claims, including attorneys’ and
accountants’ fees (collectively, “Losses”), incurred by
or asserted against Customer, except those Losses arising out of the negligence
or willful misconduct of Custodian. Custodian shall have no liability
whatsoever for the action or inaction of any Depository. Subject to
Section 1(b) below, Custodian’s responsibility with respect to any Securities or
cash held by a Subcustodian is limited to the failure on the part of Custodian
to exercise reasonable care in the selection or retention of such Subcustodian
in light of prevailing settlement and securities handling practices, procedures
and controls in the relevant market. With respect to any Losses
incurred by Customer as a result of the acts or the failure to act by any
Subcustodian
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(other
than a BNY Affiliate), Custodian shall take appropriate action to recover such
Losses from such Subcustodian; and Custodian’s sole responsibility and liability
to Customer shall be limited to amounts so received from such Subcustodian
(exclusive of costs and expenses incurred by Custodian). In no event
shall Custodian be liable to Customer or any third party for special, indirect
or consequential damages, or lost profits or loss of business, arising in
connection with this Agreement.
(b) Custodian
may enter into subcontracts, agreements and understandings with any BNY
Affiliate, whenever and on such terms and conditions as it deems necessary or
appropriate to perform its services hereunder. No such subcontract,
agreement or understanding shall discharge Custodian from its obligations
hereunder.
(c) Customer
agrees to indemnify Custodian and hold Custodian harmless from and against any
and all Losses sustained or incurred by or asserted against Custodian by reason
of or as a result of any action or inaction, or arising out of Custodian’s
performance hereunder, including reasonable fees and expenses of counsel
incurred by Custodian in a successful defense of claims by Customer; provided
however, that Customer shall not indemnify Custodian for those Losses arising
out of Custodian’s negligence or willful misconduct. This indemnity
shall be a continuing obligation of Customer, its successors and assigns,
notwithstanding the termination of this Agreement.
2. Without
limiting the generality of the foregoing, Custodian shall be under no obligation
to inquire into, and shall not be liable for, any losses incurred by Customer 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.
3. Custodian
may, with respect to questions of law specifically regarding an Account, obtain
the advice of counsel and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice.
4. Custodian
shall be under no obligation to take action to collect any amount payable on
Securities in default, or if payment is refused after due demand and
presentment.
5. Custodian
shall have no duty or responsibility to inquire into, make recommendations,
supervise, or determine the suitability of any transactions affecting any
Account.
6. Customer
shall pay to Custodian the fees and charges as may be specifically agreed upon
from time-to-time and such other fees and charges at Custodian’s standard rates
for such services as may be applicable. Customer shall reimburse
Custodian for all costs associated with the conversion of Customer’s Securities
hereunder and the transfer of Securities and records kept in connection with
this Agreement. Customer shall also reimburse Custodian for
out-of-pocket expenses which are a normal incident of the services provided
hereunder.
7. Custodian
has the right to debit any cash account for any amount payable by Customer in
connection with any and all obligations of Customer to Custodian, whether or not
relating to or arising under this Agreement. In addition to the
rights of Custodian under applicable law and other agreements, at any time when
Customer shall not have honored any and all of its obligations to Custodian,
Custodian shall have the right without notice to Customer to retain or set-off,
against such obligations of Customer, any Securities or cash Custodian or a BNY
Affiliate may directly or indirectly hold for the account of Customer, and any
obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may
have to Customer in any currency. Any such asset of, or obligation
to, Customer may be transferred to Custodian and any BNY Affiliate in order to
effect the above rights.
8. (a) Subject
to the terms below, Custodian shall be entitled to rely upon any Written or Oral
Instructions actually received by Custodian and reasonably believed by Custodian
to be duly authorized and delivered. Customer agrees that an
Authorized Person shall forward to Custodian Written Instructions confirming
Oral Instructions by the close of business of the same day that such Oral
Instructions are given to Custodian. Customer agrees that the fact
that such confirming Written Instructions are not received or that contrary
Written Instructions are received by Custodian shall in no way affect the
validity or enforceability of transactions authorized by such Oral Instructions
and effected by Custodian.
(b) If
Custodian receives Written Instructions which appear on their face to have been
transmitted by an Authorized Person via (i) computer facsimile, email, the
Internet or other insecure electronic method, or (ii) secure electronic
transmission containing applicable authorization codes, passwords and/or
authentication keys, Customer understands and agrees that Custodian cannot
determine the identity of the actual sender of such Written Instructions and
that Custodian shall conclusively presume that such Written Instructions have
been sent by an Authorized Person. Customer shall be responsible for
ensuring that only Authorized Persons transmit such Written Instructions to
Custodian and that all Authorized Persons treat applicable user and
authorization codes, passwords and/or authentication keys with extreme
care.
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(c) Customer
acknowledges and agrees that it is fully informed of the protections and risks
associated with the various methods of transmitting Written Instructions to
Custodian and that there may be more secure methods of transmitting Written
Instructions than the method(s) selected by Customer. Customer agrees
that the security procedures (if any) to be followed in connection with its
transmission of Written Instructions provide to it a commercially reasonable
degree of protection in light of its particular needs and
circumstances.
(d) If Customer
elects to transmit Written Instructions through an on-line communication system
offered by Custodian, Customer’s use thereof shall be subject to the Terms and
Conditions attached hereto as Appendix
I. If Customer elects (with Custodian’s prior consent) to
transmit Written Instructions through an on-line communications service owned or
operated by a third party, Customer agrees that Custodian shall not be
responsible or liable for the reliability or availability of any such
service.
9. Upon
reasonable request and provided Custodian shall suffer no significant disruption
of its normal activities, Customer shall have access to Custodian’s books and
records relating to the Accounts during Custodian’s normal business
hours. Upon reasonable request, copies of any such books and records
shall be provided to Customer at Customer’s expense.
10. It
is understood that Custodian is authorized to supply any information regarding
the Accounts which is required by any law, regulation or rule now or hereafter
in effect.
11. Custodian
shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications service; accidents;
labor disputes; acts of civil or military authority or governmental actions; it
being understood that Custodian shall use its best efforts to resume performance
as soon as practicable under the circumstances.
12. Custodian
shall have no duties or responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this Agreement, and no
covenant or obligation shall be implied against Custodian in connection with
this Agreement.
ARTICLE
VII
TERMINATION
Either
party may terminate this Agreement by giving to the other party a notice in
writing specifying the date of such termination, which shall be not less than
ninety (90) days after the date of such notice. Upon termination
hereof, Customer shall pay to Custodian such compensation as may be due to
Custodian, and shall likewise reimburse Custodian for other amounts payable or
reimbursable to Custodian hereunder. Custodian shall follow such
reasonable Oral or Written Instructions concerning the transfer of custody of
records, Securities and other items as Customer shall give; provided, that (a)
Custodian shall have no liability for shipping and insurance costs associated
therewith, and (b) full payment shall have been made to Custodian of its
compensation, costs, expenses and other amounts to which it is entitled
hereunder. If any Securities or cash remain in any Account, Custodian
may deliver to Customer such Securities and cash. Except as otherwise
provided herein, all obligations of the parties to each other hereunder shall
cease upon
termination of this Agreement.
ARTICLE
VIII
MISCELLANEOUS
1. Customer
agrees to furnish to Custodian a new Certificate of Authorized Persons in the
event of any change in the then present Authorized Persons. Until
such new Certificate is received, Custodian shall be fully protected in acting
upon Oral Instructions and Written Instructions of such present Authorized
Persons.
2. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to Custodian, shall be sufficiently given if addressed to Custodian
and received by it at its offices at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as Custodian may from time-to-time designate in
writing.
3. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to Customer shall be sufficiently given if addressed to Customer and
received by it at its offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as Customer may from time-to-time designate in
writing.
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4. Each
and every right granted to either party hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity,
shall be cumulative and may be exercised from time-to-time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or
the exercise of any other right.
5. In
case any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any way
be affected thereby. This Agreement may not be amended or modified in
any manner except by a written agreement executed by both
parties. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided however,
that this Agreement shall not be assignable by either party without the written
consent of the other.
6. (a) This
Agreement shall be construed in accordance with the substantive laws of the
State of New York, without regard to conflicts of laws principles
thereof. Customer and Custodian hereby consent to the jurisdiction of
a state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. Customer 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 such proceeding brought in such a court has been
brought in an inconvenient forum. Customer and 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.
(b)
The
parties
hereto agree that the establishment and maintenance of the Account, and all
interests, duties and obligations with respect thereto, shall be governed by the
laws of the State of New York.
(c) For Governmental Entities: To
the extent that in any jurisdiction Customer may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, Customer irrevocably agrees
not to claim, and it hereby waives, such immunity.
7. The
parties hereto agree that in performing hereunder, Custodian is acting solely on
behalf of Customer and no contractual or service relationship shall be deemed to
be established hereby between Custodian and any other person.
8. Customer
hereby acknowledges that Custodian is subject to federal laws, including the
Customer Identification Program (CIP) requirements under the USA PATRIOT Act and
its implementing regulations, pursuant to which Custodian must obtain, verify
and record information that allows Custodian to identify
Customer. Accordingly, prior to opening an Account hereunder
Custodian will ask Customer to provide certain information including, but not
limited to, customer’s name, physical address, tax identification number and
other information that will help Custodian to identify and verify Customer’s
identity such as organizational documents, certificate of good standing, license
to do business or other pertinent identifying information. Customer
agrees that Custodian cannot open an Account hereunder unless and until
Custodian verifies Customer’s identity in accordance with its CIP.
9. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
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IN WITNESS WHEREOF, Customer
and Custodian have caused this Agreement to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
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| Tax Identification No: | 00-0000000 | |||
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THE
BANK OF NEW YORK MELLON
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APPENDIX
I
ON-LINE
BANKING AND COMMUNICATIONS SYSTEMS
TERMS AND
CONDITIONS
1. License;
Use. (a) This Appendix
I shall govern Customer’s use of online
communications, information delivery, and electronic banking systems,
that Custodian may provide to Customer, such as The Bank of New York Inform ™
and The Bank of New York CA$H-Register Plus®, and any computer software and
documentation provided by Custodian to Customer in connection therewith
(collectively, the “Systems”). In the
event of any conflict between the terms of this Appendix I and the
main body of this Agreement with respect to Customer’s use of the Systems, the
terms of this Appendix
I shall control.
(b) Upon
delivery to Customer of System access codes, Custodian grants to
Customer a personal, nontransferable and nonexclusive license to use
the Software and the System solely for the purpose of transmitting
Written Instructions, receiving reports, making inquiries or otherwise
communicating with Custodian in connection with the
Account(s). Customer shall use the Systems solely for its own
internal and proper business purposes and not in the operation of a service
bureau. Except as set forth herein, no license or right of any kind
is granted to Customer with respect to the Systems. Customer
acknowledges that Custodian and its suppliers retain and have title and
exclusive proprietary rights to the Systems, including any trade secrets or
other ideas, concepts, know-how, methodologies, information
incorporated therein and the exclusive rights to any copyrights, trade dress,
look and feel, trademarks and patents (including registrations and applications
for registration of either), other statutory or legal protections available in
respect thereof. Customer further acknowledges that all or a part of
the Systems may be copyrighted or trademarked (or a registration or claim made
therefor) by Custodian or its suppliers. Customer shall not take any
action with respect to the Systems inconsistent with the foregoing
acknowledgments, nor shall Customer attempt to decompile, reverse engineer or
modify the System. Customer may not copy, sell, lease or provide,
directly or indirectly, the Systems or any portion thereof to any other person
or entity without Custodian’s prior written consent. Customer may not
remove any statutory copyright notice or other notice included in the System or
on any media containing the Systems or any portion thereof. Customer
shall reproduce any such notice on any reproduction of a System and shall add
any statutory copyright notice or other notice to the Systems or media upon
Custodian’s request.
(c) If
Customer subscribes to any database service provided by Custodian in connection
with its use of the Systems, delivery of such database to Customer shall
constitute the granting by Custodian to Customer of a non-exclusive,
non-transferable license to use such database for so long as this Appendix I is in
effect. It is understood and agreed that any database supplied by Custodian is
derived from sources which Custodian believes to be reliable but Custodian does
not, and cannot for the fees charged, guarantee or warrant that the data is
correct, complete or current. All such databases are provided as an
accommodation by Custodian to its customers and are compiled without any
independent investigation by Custodian. However, Custodian will
revise each database on a periodic basis as Custodian, in its discretion, deems
necessary and appropriate. Customer also agrees that Customer will
promptly install all updates and revisions to each database which Custodian
provides and that Custodian cannot bear any responsibility whatsoever for
Customer’s failure to do so. CUSTODIAN IS NOT RESPONSIBLE FOR ANY RESULTS
OBTAINED BY CUSTOMER FROM USE OF DATABASE SERVICES PROVIDED BY CUSTODIAN.
2. Equipment. Customer
shall obtain and maintain at its own cost and expense all equipment and
services, including but not limited to communications services, necessary for it
to utilize and obtain access to the Systems, and Custodian shall not be
responsible for the reliability or availability of any such equipment or
services.
3. Proprietary
Information. The Systems, any data base and any proprietary
data, processes, information and documentation made available to Customer (other
than which are or become part of the public domain or are legally required to be
made available to the public) (collectively, the “Information”), are
the exclusive and confidential property of Custodian or its
suppliers. However, for the avoidance of doubt, reports generated by
Customer containing information relating to the Account(s) are not deemed to be
within the meaning of the term “Information.”. Customer shall keep
the Information confidential by using the same care and discretion that Customer
uses with respect to its own confidential property and trade secrets, but not
less than reasonable care. Upon termination of the Agreement or the
licenses granted herein for any reason, Customer shall return to Custodian any
and all copies of the Information which are in its possession or under its
control. The provisions of this Section 3 shall not affect the
copyright status of any of the Information which may be copyrighted and shall
apply to all information whether or not copyrighted.
4. Modifications. Custodian
reserves the right to modify the System from time-to-time and Customer shall
implement new releases of the Systems as Custodian may
direct. Customer agrees not to modify or attempt to modify the System
without Custodian’s prior written consent. Customer acknowledges that
any modifications to the Software, whether by Customer or Custodian and whether
with or without 'Custodian’s consent, shall become the property of
Custodian.
5. NO
REPRESENTATIONS OR WARRANTIES: CUSTODIAN AND ITS MANUFACTURERS AND SUPPLIERS
MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SYSTEMS, ANY SERVICES
OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, THE SYSTEMS, ANY
SERVICES AND ANY DATABASE ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL,
WHICH CUSTOMER MAY INCUR IN CONNECTION WITH THE SYSTEMS, SERVICES OR ANY
DATABASE, EVEN IF CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION,
INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR
ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE
CONTROL.
6. Security; Reliance;
Unauthorized Use. Custodian will establish security procedures
to be followed in connection with the Systems. Customer understands
and agrees that the security procedures are intended to determine whether
instructions received by Custodian through the Systems are authorized but are
not (unless otherwise specified in writing) intended to detect any errors
contained in such instructions. Customer will cause all persons
utilizing the Software and the Systems to treat all applicable user and
authorization codes, passwords and authentication keys with the highest degree
of care and confidentiality. Custodian is hereby irrevocably authorized to
comply with and rely upon on Written Instructions, whether or not authorized,
received by it through the Systems in accordance with the security
procedures. Customer acknowledges that it is its sole responsibility
to assure that only Authorized Persons use the Systems and that to the fullest
extent permitted by applicable law Custodian shall not be responsible nor liable
for any unauthorized use thereof or for any losses sustained by Customer arising
from or in connection with the use of the Systems or Custodian’s reliance upon
and compliance with Written Instructions received through the
System.
7. System
Acknowledgments. Custodian shall acknowledge through the Systems its
receipt of each transmission communicated through the Systems, and in the
absence of such acknowledgment Custodian shall not be liable for any failure to
act in accordance with such transmission and Customer may not claim that such
transmission was received by Custodian.
8. Viruses. Customer
agrees to use reasonable efforts to prevent the transmission to the Systems of
any software or file which contains any viruses, worms, harmful component or
corrupted data and agrees not to use any device, software, or routine to
interfere or attempt to interfere with the proper working of the
Systems.
9. Encryption. Customer
acknowledges and agrees that encryption may not be available for every
communication through the Systems, or for all data. Customer agrees
that Custodian may deactivate any encryption features at any time, without
notice or liability to Customer, for the purpose of maintaining, repairing
or troubleshooting the System or the Software.
10. On-Line Inquiry and
Modification of Records. In connection with Customer’s use of the
Systems, Custodian may, at Customer’s request, permit Customer to enter data
directly into a Custodian database for the purpose of modifying certain
information maintained by Custodian’s systems, including, but not limited to,
change of address information. To the extent that Customer is granted
such access, Customer agrees to indemnify and hold Custodian harmless from all
loss, liability, cost, damage and expense (including attorney’s fees and
expenses) to which Custodian may be subjected or which may be incurred in
connection with any claim which may arise out of or as a result of changes to
Custodian database records initiated by Customer.
11. Agents. Customer
may, on advance written notice to the Custodian, permit its agents and
contractors (“Agents”) to access
and use the Systems on Customer’s behalf, except that the Custodian reserves the
right to prohibit Customer’s use of any particular Agent for any
reason. Customer shall require its Agent(s) to agree in writing to be
bound by the terms of the Agreement, and Customer shall be liable and
responsible for any act or omission of such Agent in the same manner, and to the
same extent, as though such act or omission were that of
Customer. Each submission of a Written Instruction, request for
information or other communication by the Agent through a System shall
constitute a representation and warranty by the Customer that the Agent
continues to be duly authorized by the Customer to so act on its behalf and the
Custodian may rely on the representations and warranties made herein in
complying with such Written Instruction, request or
communication. Any Written Instruction, information request or other
communication through the System by an Agent shall be deemed that of Customer,
and Customer shall be bound thereby whether or not authorized. Customer may,
subject to the terms of this Agreement and upon advance written notice to the
Bank, provide a copy of the system user manuals to its Agent if the Agent
requires such copies to use the Systems on Customer’s behalf. Upon
cessation of any such Agent’s services, Customer shall promptly terminate such
Agent’s access to the ,Systems and retrieve from the Agent any copies of the
manuals and destroy them.
CERTIFICATE
OF AUTHORIZED PERSONS
(Customer
- Oral and Written Instructions)
The
undersigned hereby certifies that he/she is the duly elected and
acting ______________________________ of DB-New York Nuclear Uranium
Fund (“Customer”), and
further certifies that the following officers or employees of the Customer have
been duly authorized in conformity with the Customer’s Amended and Restated
Declaration of Trust and Trust Agreement to deliver Oral and Written
Instructions to The Bank of New York Mellon (“BNY”) pursuant to the
Global Custody Agreement between the Customer and BNY dated ________ ___,
200___, and that the signatures appearing opposite their names are true and
correct:
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This
certificate supersedes any certificate of authorized individuals you may
currently have on file.
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| By: | DB Commodity Services LLC, | |||
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CUSTODY
ACCOUNT AGENCY AUTHORIZATION
Reference
is made to the Global Custody Agreement (the “Custody Agreement”)
dated as of _______ ___, 200__ between DB-New York Nuclear Uranium Fund (“Customer”) and The
Bank of New York Mellon(“BNY”).
This is
to advise BNY that for the account(s) identified below Customer has duly
authorized the following investment managers (each, an “Investment Manager”)
to act as Customer’s agent for the purpose of (a) delivering Oral and Written
Instructions to BNY (as defined in the Custody Agreement), and/or (b) buying and
selling foreign currency (on a spot and forward basis) and options to buy and
sell foreign currency, as such purposes are designated below, and to confirm to
BNY that all actions taken by BNY in reliance upon such authorization (whether
in its capacity as custodian or counterparty) shall be binding on
Customer.
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CERTIFICATE
OF AUTHORIZED PERSONS
(Investment
Manager - Oral and Written Instructions)
Re: Account
Name:
Account
Number:
The
undersigned hereby certifies that he/she is the duly elected and acting
______________________ of DB Commodity Services LLC (the “Investment Manager”),
and further certifies that the following officers or employees of the Investment
Manager have been duly authorized in conformity with the Investment Manager’s
organizational documents to deliver oral and written instructions to The Bank of
New York Mellon (“BNY”) with respect to
the above-referenced Account, and that the signatures appearing opposite their
names are true and correct:
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This
certificate supersedes any certificate of authorized individuals you may
currently have on file.
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CERTIFICATE
OF AUTHORIZED PERSONS
(Customer
- Foreign Exchange)
The
undersigned hereby certifies that he/she is the duly elected and acting
______________________ of
_____________________________________________________________________________________
(the “Corporation”), and
further certifies that the following officers or employees of the Corporation
have been duly authorized in conformity with the Corporation’s Articles of
Incorporation and By-Laws to enter into contracts with The Bank of New York
Mellon (“BNY”)
to buy and sell foreign currency (on a spot and forward basis) and options to
buy and sell foreign currency on behalf of the Corporation or any Account
(“F/X
Transactions”), and that the signatures appearing opposite their names
are true and correct:
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and
further certifies that the following officers or employees of the Corporation
have been duly authorized in conformity with the Corporation’s Articles of
Incorporation and By-Laws to confirm, orally and in writing, the terms of F/X
Transactions entered with BNY, and that the signatures appearing opposite their
names are true and correct:
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This
certificate supersedes any certificate of authorized individuals you may
currently have on file.
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By:
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CERTIFICATE
OF AUTHORIZED PERSONS
(Investment
Manager - Foreign Exchange)
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Re:
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Account
Name:
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Account
Number:
The
undersigned hereby certifies that he/she is the duly elected and acting
______________________ of
_____________________________________________________________________________________
(the “Corporation”), and
further certifies that the following officers or employees of the Corporation
have been duly authorized in conformity with the Corporation’s Articles of
Incorporation and By-Laws to enter into contracts with The Bank of New York
Mellon (“BNY”)
to buy and sell foreign currency (on a spot and forward basis) and options to
buy and sell foreign currency on behalf of the Corporation or any Account
(“F/X
Transactions”), and that the signatures appearing opposite their names
are true and correct:
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and
further certifies that the following officers or employees of the Investment
Manager have been duly authorized in conformity with the Investment Manager’s
organizational documents to confirm, orally and in writing, the terms of F/X
Transactions entered by the Investment Manager with BNY, and that the signatures
appearing opposite their names are true and correct:
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This
certificate supersedes any certificate of authorized individuals you may
currently have on file.
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| By: | DB Commodity Services LLC, | |||
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By:
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