Domestic Custody Agreement 1 1. INTENTION OF THE PARTIES; DEFINITIONS 1 1.1 Intention of the Parties 1 1.2 Definitions; Interpretation 1 2. What J.P. Morgan is Required to Do 3 2.1 Set Up Accounts 3 2.2 Cash Account 4 2.3 Segregation of Assets;...

Exhibit (j)

TABLE OF CONTENTS

Domestic Custody Agreement			1

1.	INTENTION OF THE PARTIES; DEFINITIONS		1
	1.1	Intention of the Parties	1
	1.2	Definitions; Interpretation	1

2.	What X.X. Xxxxxx is Required to Do		3
	2.1	Set Up Accounts	3
	2.2	Cash Account	4
	2.3	Segregation of Assets; Nominee Name	5
	2.4	Settlement of Transactions	5
	2.5	Contractual Settlement Date Accounting	6
	2.6	Actual Settlement Date Accounting	7
	2.7	Income Collection (AutoCredit®)	7
	2.8	Miscellaneous Administrative Duties	7
	2.9	Corporate Actions	8
	2.10	Class Action Litigation	8
	2.11	Proxies	8
	2.12	Statements of Account	9
	2.13	Access to X.X. Xxxxxx’x Records	9
	2.14	Tax Relief Services	10
	2.15	Notification	10

3.	Instructions		11
	3.1	Acting on Instructions; Method of Instruction and Unclear Instructions	11
	3.2	Verification and Security Procedures	11
	3.3	Instructions Contrary to Law/Market Practice	11
	3.4	Cut-Off Times	11
	3.5	Electronic Access	12

4.	Fees, Expenses and Other Amounts Owing to X.X. Xxxxxx		12
	4.1	Fees and Expenses	12
	4.2	Overdrafts	12
	4.3	X.X. Xxxxxx’x Right Over Securities; Set-off	12

5.	Securities Depositories		13
	5.1	Use of Securities Depositories	13

6.	Additional Provisions		14
	6.1	Representations of the Customer and X.X. Xxxxxx	14
	6.2	The Customer is Liable to X.X. Xxxxxx Even if it is Acting for Another Person	14

7.	When X.X. Xxxxxx is Liable to the Customer		15
	7.1	Standard of Care; Liability	15
	7.2	Force Majeure	16
	7.3	X.X. Xxxxxx May Consult With Counsel	16
	7.4	X.X. Xxxxxx Provides Diverse Financial Services and May Generate Profits as a Result	16
	7.5	Assets Held Outside X.X. Xxxxxx’x Control	16
	7.6	Ancillary Services	17

8.	Taxation		17
	8.1	Tax Obligations	17
	8.2	Tax Relief Services With Respect to American Depository Receipts	18

9.	Termination		18
	9.1	Term and Termination	18
	9.2	Exit Procedure	19

10.	Miscellaneous		19
	10.1	Notifications	19
	10.2	Successors and Assigns	19
	10.3	Entire Agreement	20
	10.4	Insurance	20
	10.5	Security Holding Disclosure	20
	10.6	USA PATRIOT Act Disclosure	20
	10.7	Governing Law and Jurisdiction	21
	10.8	Severability; Waiver; and Survival	21
	10.9	Confidentiality	21
	10.10	Counterparts	22
	10.11	No Third Party Beneficiaries	22
	SCHEDULE 1 Form of Board Resolution		23
	ANNEX A Electronic Access		24

Domestic Custody Agreement

This agreement (“Agreement”), dated November_______, 2011, and effective as of December 1, 2011, is between JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (“X.X. Xxxxxx”), with a place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000; and TRIANGLE FUND LLC, a Delaware limited liability corporation (the “Customer”) with a place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.

1. INTENTION OF THE PARTIES; DEFINITIONS

1.1 Intention of the Parties

(a)

This Agreement sets out the terms on which X.X. Xxxxxx will be providing custodial, settlement and other associated services to the Customer. X.X. Xxxxxx will be responsible for the performance of only those duties set forth in this Agreement.

(b)

The Customer acknowledges that X.X. Xxxxxx is not providing any legal, tax or investment advice in providing the services under this Agreement.

(c)

It is the intention of the parties that the services offered by X.X. Xxxxxx under this Agreement with respect to the custody of Securities and related settlement services will be limited to Securities that are issued in the United States (“U.S.”) by an issuer that is organized under the laws of the U.S. or any state thereof, or that are both traded in the U.S. and eligible for deposit in a U.S. Securities Depository.

(d)

The terms and conditions of this Agreement are applicable only to the services which are specified in this Agreement. Other services are subject to separate terms and conditions, which X.X. Xxxxxx will make available to the Customer upon request.

1.2 Definitions; Interpretation

(a)

As used herein, the following terms have the meaning hereinafter stated.

“Account” has the meaning set forth in Section 2.1 of this Agreement.

“Affiliate” means an entity controlling, controlled by, or under common control with, X.X. Xxxxxx or the Customer as the case may be.

“Applicable Law” means any applicable statute, treaty, rule, regulation or common law and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or governmental entity.

“Authorized Person” means any person who has been designated by written notice from the Customer in the form as provided by X.X. Xxxxxx (or by written notice in the form as provided by X.X. Xxxxxx from any agent designated by the Customer, including, without limitation, an investment manager) to act on behalf of the Customer under this Agreement and any person who has been given an access code by a security administrator appointed by the Customer which allows the provision of Instructions. Such persons will continue to be Authorized Persons until such time as X.X. Xxxxxx receives and has had

reasonable time to act upon Instructions from the Customer (or its agent) that any such person is no longer an Authorized Person.

“Cash Account” has the meaning set forth in Section 2.1(a)(ii).

“Confidential Information” means and includes all non-public information concerning the Customer or the Accounts which X.X. Xxxxxx receives in the course of providing services under this Agreement. Nevertheless, the term Confidential Information shall not include information which is or becomes available to the general public by means other than X.X. Xxxxxx’x breach of the terms of this Agreement or information which X.X. Xxxxxx obtains on a non-confidential basis from a person who is not known to be subject to any obligation of confidence to any person with respect to that information.

“Corporate Action” means any subscription right, bonus issue, stock repurchase plan, redemption, exchange, tender offer, or similar matter with respect to a Financial Asset in the Securities Account that requires discretionary action by the beneficial owner of the Security, but does not include rights with respect to class action litigation or proxy voting.

“Entitlement Holder” means the person named on the records of a Securities Intermediary as the person having a Securities Entitlement against the Securities Intermediary.

“Financial Asset” means a Security and refers, as the context requires, either to the asset itself or to the means by which a person’s claim to it is evidenced, including a Security, a security certificate or a Securities Entitlement. “Financial Asset” does not include cash.

“Instruction” means an instruction that has been verified in accordance with a Security Procedure or, if no Security Procedure is applicable, which X.X. Xxxxxx believes in good faith to have been given by an Authorized Person.

“X.X. Xxxxxx Indemnitees” means X.X. Xxxxxx, its nominees, directors, officers, employees and agents.

“Liabilities” means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, taxes (other than taxes based solely on X.X. Xxxxxx’x income),or expenses of any kind whatsoever (including, without limitation, reasonable attorneys’, accountants’, consultants’ or experts’ fees and disbursements), in each case arising in connection with the services performed under this Agreement.

“Securities” means shares, stocks, debentures, bonds, notes or other like obligations, whether issued in certificated or uncertificated form, and any certificates, receipts, warrants or other instruments representing rights to receive, purchase or subscribe for the same that are commonly traded or dealt in on securities exchanges or financial markets or other obligations of an issuer, or shares, participations and interests in an issuer recognized in the country in which it is issued or dealt in as a medium for investment and any other property as may be acceptable to X.X. Xxxxxx for the Securities Account.

“Securities Account” means each Securities custody account on X.X. Xxxxxx’x records to which Financial Assets are or may be credited under this Agreement.

“Securities Depository” means any securities depository, dematerialized book entry system or similar system for the central handling of Securities.

“Securities Entitlement” means the rights and property interests of an Entitlement Holder with respect to a Financial Asset as set forth in Part 5 of Article 8 of the Uniform Commercial Code of the State of New York, as the same may be amended from time to time.

“Securities Intermediary” means X.X. Xxxxxx, a Securities Depository and any other financial institution which in the ordinary course of business maintains Securities custody accounts for others and acts in that capacity.

“Security Procedure” means security procedure to be followed by the Customer upon the issuance of an Instruction and/or by X.X. Xxxxxx upon the receipt of an Instruction, so as to enable X.X. Xxxxxx to verify that such Instruction is authorized, as set forth in service level documentation in effect from time to time between the parties with respect to the services set forth in this Agreement, or as otherwise agreed in writing by the parties. A Security Procedure may, without limitation, involve the use of algorithms, codes, passwords, encryption or telephone call backs, and may be updated by X.X. Xxxxxx from time to time upon notice to the Customer. The Customer acknowledges that the Security Procedure is designed to verify the authenticity of, and not detect errors in, Instructions. For the avoidance of doubt, the parties agree that a SWIFT message issued in the name of the Customer through any third party utility agreed upon by the parties as being a method for providing Instructions and authenticated in accordance with that utility’s customary procedures shall be deemed to be an authorized Instruction.

(b)

Headings are for reference and convenience only and are not intended to affect interpretation.

(c)

References to Articles and Sections are to Articles and Sections of this Agreement and references to sub-sections and paragraphs are to sub-sections of the Sections and paragraphs of the sub-sections in which they appear.

(d)

Unless the context requires otherwise, references in this Agreement to “persons” shall include legal as well as natural entities; references importing the singular shall include the plural (and vice versa); use of the generic masculine pronoun shall include the feminine; use of the term “including” shall be deemed to mean “including but not limited to,” and references to appendices and numbered sections shall be to such addenda and provisions herein; all such addenda are hereby incorporated in this Agreement by reference.

2. What X.X. Xxxxxx is Required to Do

2.1 Set Up Accounts

(a)

X.X. Xxxxxx will establish and maintain the following accounts (“Accounts”):

(i)

one or more Securities Accounts in the name of the Customer (or in another name requested by the Customer that is acceptable to X.X. Xxxxxx) for Financial Assets, which may be held by X.X. Xxxxxx or a Securities Depository for X.X. Xxxxxx on behalf of the Customer, including as an Entitlement Holder; and

(ii)

one or more accounts in the name of the Customer (or in another name requested by the Customer that is acceptable to X.X. Xxxxxx) (“Cash Account”)

for any and all cash received by or on behalf of X.X. Xxxxxx for the account of the Customer.

(b)

At the request of the Customer, additional Accounts may be opened in the future, and such additional Accounts shall be subject to the terms of this Agreement.

(c)

In the event that the Customer requests the opening of any additional Account for the purpose of holding collateral pledged by the Customer to a securities exchange, clearing corporation, or other central counterparty (a “Counterparty”) to secure trading activity by the Customer, or the pledge to a Counterparty of cash or individual Securities held in an Account, that Account (or the pledged cash or Securities) shall be subject to the collateral arrangements in effect between X.X. Xxxxxx and the Counterparty in addition to the terms of this Agreement.

(d)

X.X. Xxxxxx’x obligation to open Accounts pursuant to Section 2.1(a) is conditional upon X.X. Xxxxxx receiving such of the following documents as X.X. Xxxxxx may require:

(i)

a certified copy of the Customer’s constitutional documents as currently in force;

(ii)

evidence reasonably satisfactory to X.X. Xxxxxx of the due authorization and execution of this Agreement by the Customer (for example by a certified copy of a resolution of the Customer’s board of directors or equivalent governing body, substantially in the form set out in Schedule 1);

(iii)

X.X. Xxxxxx’x standard form fund manager mandate completed by the fund manager designated by the Customer; and

(iv) in the case of any Account opened in a name not that of the Customer, documentation with respect to that name similar to that set forth in sub-sections (i) – (iii).

(e)

X.X. Xxxxxx reserves the right to reverse any transactions that were credited to the Accounts due to mis-postings and other similar causes.

2.2 Cash Account

(a)

Any amount standing to the credit of the Cash Account is a debt due from X.X. Xxxxxx to Customer as banker. Except as otherwise provided in Instructions acceptable to X.X. Xxxxxx, all cash held in the Cash Account will be deposited during the period it is credited to the Accounts in one or more deposit accounts at X.X. Xxxxxx; and any residual cash in such Cash Account will bear interest at a rate to be determined by X.X. Xxxxxx from time-to-time, and without the Customer’s consent, and as of the date hereof, the applicable rate is 5 basis points.

(b)

Any amounts credited by X.X. Xxxxxx to the Cash Account on the basis of a notice or an interim credit from a third party, may be reversed if X.X. Xxxxxx does not receive final payment in a timely manner. X.X. Xxxxxx will notify the Customer promptly of any such reversal.

(c)

Whenever the Customer instructs X.X. Xxxxxx to do so, X.X. Xxxxxx will arrange for the automatic investment of cash in the Cash Account in mutual funds (including, without limitation, the JPMorgan Money Market Funds and any other mutual fund with respect to which X.X. Xxxxxx or an Affiliate of X.X. Xxxxxx serves as an investment adviser, administrator, shareholder servicing agent, and/or custodian or subcustodian, and regardless of whether or not X.X. Xxxxxx or its Affiliate receives any fees for services rendered to any such mutual fund in addition to the fees received by X.X. Xxxxxx pursuant to this Agreement, all of which such fees X.X. Xxxxxx is specifically authorized to retain) which X.X. Xxxxxx makes available for such purposes and which the Customer selects through Instructions to X.X. Xxxxxx. Furthermore, in this regard, X.X. Xxxxxx is directed automatically to arrange for the redemption of such mutual fund shares as may be necessary to avoid any potential overdraft hereunder that X.X. Xxxxxx perceives, based upon the information available to X.X. Xxxxxx at the time of such redemption or withdrawal. The Customer agrees that it will read the prospectus for any mutual fund prior to investing and acknowledges that investments in mutual fund shares are not insured by the Federal Deposit Insurance Corporation (“FDIC”) and are not obligations of or guaranteed by X.X. Xxxxxx. The Customer further acknowledges that certain services for which X.X. Xxxxxx is paid fees by mutual funds in which the Customer invests may overlap with the services X.X. Xxxxxx provides under this Agreement.

(d)

With X.X. Xxxxxx’x consent, the Customer may use as the Cash Account a separate demand deposit account established by the Customer at X.X. Xxxxxx which is electronically linked to the Securities Account.

2.3 Segregation of Assets; Nominee Name

(a)

X.X. Xxxxxx will identify in its books that Financial Assets credited to the Customer’s Securities Account belong to the Customer (except as otherwise may be agreed by X.X. Xxxxxx and the Customer).

(b)

X.X. Xxxxxx is authorized, in its discretion:

(i)

to hold in bearer form, such Financial Assets as are customarily held in bearer form or are delivered to X.X. Xxxxxx in bearer form;

(ii)

to hold Securities in or deposit Securities with any Securities Depository, provided that Rule 17f-4 under the Investment Company Act of 1940, as amended, is complied with;

(iii)

to hold Securities in omnibus accounts on a fungible basis and to accept delivery of Securities of the same class and denomination as those deposited with X.X. Xxxxxx; and

(iv)

to register in the name of the Customer, X.X. Xxxxxx, a Securities Depository, or their respective nominees, such Financial Assets as are customarily held in registered form.

2.4 Settlement of Transactions

Subject to Article 3 and Section 4.2 of this Agreement, X.X. Xxxxxx will act in accordance with Instructions with respect to settlement of transactions. Settlement will be conducted in accordance with prevailing standards, of the market in which the transaction occurs. Without limiting the generality of the foregoing, the Customer authorizes X.X. Xxxxxx to deliver Securities or payment in accordance with applicable market practice in advance of receipt or settlement of consideration expected in connection with such delivery or payment, and the Customer acknowledges and agrees that such action alone will not of itself constitute negligence, fraud, or wilful misconduct of X.X. Xxxxxx, and the risk of loss arising from any such action will be borne by the Customer. In the case of the failure of the Customer’s counterparty (or other appropriate party) to deliver the expected consideration as agreed, X.X. Xxxxxx will contact the counterparty to seek settlement and will notify the Customer of such failure. If the Customer’s counterparty continues to fail to deliver the expected consideration, X.X. Xxxxxx will provide information reasonably requested by the Customer that X.X. Xxxxxx has in its possession to allow the Customer to enforce rights that the Customer has against the Customer’s counterparty, but X.X. Xxxxxx will not be obliged to institute legal proceedings, file a proof of claim in any insolvency proceeding or take any similar action.

2.5 Contractual Settlement Date Accounting

(a)

X.X. Xxxxxx will effect book entries on a contractual settlement date accounting basis as described below with respect to the settlement of transactions in those markets where X.X. Xxxxxx generally offers contractual settlement date accounting.

(i)

Sales: On the settlement date for a sale, X.X. Xxxxxx will credit the Cash Account with the proceeds of the sale and, if not already delivered, transfer the relevant Financial Assets to an account at X.X. Xxxxxx pending settlement of the transaction.

(ii)

Purchases: On the settlement date for a purchase (or earlier, if market practice requires delivery of the purchase price before the settlement date), X.X. Xxxxxx will debit the Cash Account for the settlement amount and credit a separate account at X.X. Xxxxxx. X.X. Xxxxxx then will post the Securities Account as awaiting receipt of the expected Financial Assets. The Customer will not be entitled to the delivery of Financial Assets until X.X. Xxxxxx actually receives them.

Upon request, X.X. Xxxxxx shall provide the Customer with a list of those markets for which it provides contractual settlement date accounting. X.X. Xxxxxx may add markets to or remove markets from such list upon reasonable notice to the Customer. X.X. Xxxxxx reserves the right to restrict in good faith the availability of contractual settlement date accounting for credit or operational reasons.

(b)

X.X. Xxxxxx may reverse any debit or credit made pursuant to Section 2.5(a) prior to a transaction’s actual settlement upon notice to the Customer in cases where X.X. Xxxxxx reasonably believes that the transaction will not settle in the ordinary course within a reasonable time. The Customer will be responsible for any costs or Liabilities resulting from such reversal, except to the extent such costs or Liabilities result from

X.X. Xxxxxx’x fraud, negligence or willful misconduct. The Customer acknowledges that the procedures described in Section 2.5 are of an administrative nature, and X.X. Xxxxxx does not undertake to make loans and/or Financial Assets available to the Customer.

2.6 Actual Settlement Date Accounting

With respect to settlement of a transaction that is not posted to the Account on the contractual settlement date as referred to in Section 2.5, X.X. Xxxxxx will post the transaction on the date on which the cash or Financial Assets received as consideration for the transaction is actually received and settled by X.X. Xxxxxx.

2.7 Income Collection (AutoCredit®)

(a)

X.X. Xxxxxx will monitor information publicly available in the applicable market about forthcoming income payments on the Financial Assets, and will promptly notify the Customer of such information.

(b)

Unless the Customer is notified otherwise, X.X. Xxxxxx will credit the Cash Account with income proceeds on Financial Assets on the anticipated payment date, net of any taxes that are withheld by X.X. Xxxxxx or any third party (“AutoCredit”) in those markets where X.X. Xxxxxx customarily provides an AutoCredit service. Upon request, X.X. Xxxxxx shall provide the Customer with a list of AutoCredit eligible markets. X.X. Xxxxxx may add markets to or remove markets from the list of AutoCredit markets upon notice to the Customer that is reasonable in the circumstances. X.X. Xxxxxx may reverse AutoCredit credits upon oral or written notification to the Customer if X.X. Xxxxxx believes that the corresponding payment will not be received by X.X. Xxxxxx within a reasonable period or the credit was incorrect.

(c)

In markets where X.X. Xxxxxx does not provide an AutoCredit service, income on Financial Assets, net of any taxes withheld by X.X. Xxxxxx or any third party, will be credited only after actual receipt and reconciliation by X.X. Xxxxxx.

(d)

X.X. Xxxxxx will use reasonable efforts to contact appropriate parties to collect unpaid interest, dividends or redemption proceeds and notify the Customer of the late payment, but X.X. Xxxxxx will not be obliged to file any formal notice of default, institute legal proceedings, file a proof of claim in any insolvency proceeding or take any similar action.

2.8 Miscellaneous Administrative Duties

(a)

Until X.X. Xxxxxx receives Instructions to the contrary, X.X. Xxxxxx will:

(i)

present all Financial Assets for which X.X. Xxxxxx has received notice of a call for redemption or that have otherwise matured, and all income and interest coupons and other income items that call for payment upon presentation;

(ii)

execute in the name of the Customer such certificates as may be required to obtain payment in respect of Financial Assets; and

(iii)

exchange interim or temporary documents of title held in the Securities Account for definitive documents of title.

(b)

In the event that, as a result of holding of Financial Assets in an omnibus account, the Customer receives fractional interests in Financial Assets arising out of a Corporate Action or class action litigation, X.X. Xxxxxx will credit the Customer with the amount of cash it would have received had the Financial Assets not been held in an omnibus account, and the Customer shall relinquish to X.X. Xxxxxx its interest in such fractional interests.

(c)

If some, but not all, of an outstanding class of Financial Assets is called for redemption, X.X. Xxxxxx may allot the amount redeemed among the respective beneficial holders of such a class of Financial Assets on a pro rata basis or in a similar manner X.X. Xxxxxx deems fair and equitable.

2.9 Corporate Actions

(a)

X.X. Xxxxxx will act in accordance with local market practice to obtain information concerning Corporate Actions that is publicly available in the local market. X.X. Xxxxxx also will review information obtained from sources to which it subscribes for information concerning such Corporate Actions. X.X. Xxxxxx will promptly provide that information (or summaries that reflect the material points concerning the applicable Corporate Action) to the Customer or its Authorized Person.

(b)

X.X. Xxxxxx will act in accordance with the Customer’s Instructions in relation to such Corporate Actions. If the Customer fails to provide X.X. Xxxxxx with timely Instructions with respect to any Corporate Action, neither X.X. Xxxxxx nor its nominees will take any action in relation to that Corporate Action, except as otherwise agreed in writing by X.X. Xxxxxx and the Customer or as may be set forth by X.X. Xxxxxx as a default action in the notification it provides under Section 2.9(a) with respect to that Corporate Action.

2.10 Class Action Litigation

Any notices received by X.X. Xxxxxx’x corporate actions department about settled securities class action litigation that requires action by affected owners of the underlying Financial Assets will be promptly notified to the Customer if X.X. Xxxxxx, using reasonable care and diligence in the circumstances, identifies that the Customer was a shareholder and held the relevant Financial Assets in custody with X.X. Xxxxxx at the relevant time. X.X. Xxxxxx will not make filings in the name of the Customer in respect to such notifications except as otherwise agreed in writing between the Customer and X.X. Xxxxxx. The services set forth in this Section 2.10 are available only in certain markets, details of which are available from X.X. Xxxxxx on request.

2.11 Proxies

(a)

X.X. Xxxxxx will monitor information distributed to holders of Financial Assets about upcoming shareholder meetings, promptly notify the Customer of such information and, subject to Section 2.11(c), act in accordance with the Customer’s Instructions in relation to such meetings (the “Proxy Voting Service”).

(b)

The Proxy Voting Service is available only in certain markets, details of which are available from X.X. Xxxxxx on request. Provision of the Proxy Voting Service is

conditional upon receipt by X.X. Xxxxxx of a duly completed enrolment form as well as additional documentation that may be required for certain markets.

(c)

The Proxy Voting Service does not include physical attendance at shareholder meetings. Requests for physical attendance at shareholder meetings can be made but they will be evaluated and agreed to by X.X. Xxxxxx on a case by case basis.

(d)

The Customer acknowledges that the provision of the Proxy Voting Service may be precluded or restricted under a variety of circumstances. These circumstances include, but are not limited to:

(i)

the Financial Assets being on loan or out for registration;

(ii)

the pendency of conversion or another corporate action;

(iii)

the Financial Assets being held in a margin or collateral account at X.X. Xxxxxx or another bank or broker, or otherwise in a manner which affects voting;

(iv)

local market regulations or practices, or restrictions by the issuer; and

(v)

X.X. Xxxxxx being required to vote all shares held for a particular issue for all of X.X. Xxxxxx’x customers on a net basis (i.e., a net yes or no vote based on voting instructions received from all its customers). Where this is the case, X.X. Xxxxxx will notify the Customer.

2.12 Statements of Account

(a)

X.X. Xxxxxx will provide the Customer with a statement of account for each Account, identifying cash and Financial Assets held in the Account on at least a monthly basis and any transfers to and from the Account promptly after each such transfer. Statements of account may be delivered electronically or on-line over the Internet and are deemed delivered when sent electronically or posted on the Internet. The Customer will review its statement of account and give X.X. Xxxxxx written notice of (i) any suspected error or omission or (ii) non-receipt of a statement of account within a reasonable time after the statement of accounts is sent or made available to the Customer, as the case may be.

(b)

The Customer acknowledges that information available to it electronically with respect to transactions posted after the close of the prior business day may not be accurate due to mis-postings, delays in updating Account records, and other causes. X.X. Xxxxxx will not be liable for any loss or damage arising out of any such information accessed electronically that is subsequently updated or corrected by the close of business on the first business day after the original transaction was posted.

2.13 Access to X.X. Xxxxxx’x Records

(a)

X.X. Xxxxxx will allow the Customer’s auditors and independent public accountants such reasonable access to the records of X.X. Xxxxxx relating to the Accounts as is required in connection with their examination of books and records pertaining to the Customer’s affairs.

(b)

X.X. Xxxxxx will, upon reasonable written notice, allow the Customer reasonable access during normal working hours to the records of X.X. Xxxxxx relating to the

Accounts. X.X. Xxxxxx may impose reasonable restrictions on the number of individuals allowed access, the frequency and length of such access, and the scope of the records made available. The Customer shall reimburse X.X. Xxxxxx for the reasonable cost of copying, collating and researching archived information.

2.14 Tax Relief Services

X.X. Xxxxxx will provide tax relief services as provided in Section 8.2.

2.15 Notification

If the Customer has agreed to access information concerning the Accounts through X.X. Xxxxxx’x website, X.X. Xxxxxx may make any notifications required under this Agreement by posting it on the website.

3. Instructions

3.1 Acting on Instructions; Method of Instruction and Unclear Instructions

(a)

The Customer authorizes X.X. Xxxxxx to accept, rely upon and/or act upon any Instructions received by it without inquiry, subject to the standard of care set forth in Section 7. The Customer will indemnify the X.X. Xxxxxx Indemnitees against, and hold each of them harmless from, any Liabilities that may be imposed on, incurred by, or asserted against the X.X. Xxxxxx Indemnitees as a result of any action or omission taken in accordance with any Instruction, except to the extent such Liabilities result from X.X. Xxxxxx Indemnitees’ fraud, negligence or willful misconduct.

(b)

To the extent possible, instructions to X.X. Xxxxxx shall be sent via electronic instruction or trade information system acceptable to X.X. Xxxxxx or via facsimile transmission. Where reasonably practicable, the Customer will use automated and electronic methods of sending Instructions.

(c)

X.X. Xxxxxx shall promptly notify an Authorized Person if X.X. Xxxxxx determines that an Instruction does not contain all information reasonably necessary for X.X. Xxxxxx to carry out the Instruction. X.X. Xxxxxx may decline to act upon an Instruction if it does not receive clarification or confirmation satisfactory to it. X.X. Xxxxxx will not be liable for any loss arising from any reasonable delay in carrying out any such Instruction while it seeks information, clarification or confirmation or in declining to act upon any Instruction for which it does not receive clarification satisfactory to it. X.X. Xxxxxx will notify the Customer within a reasonably practicable time in the event X.X. Xxxxxx does not act upon an Instruction.

3.2 Verification and Security Procedures

(a)

X.X. Xxxxxx and the Customer shall comply with any applicable Security Procedures with respect to the delivery or authentication of Instructions and shall ensure that any codes, passwords or similar devices are reasonably safeguarded.

(b)

Either party may record any of their telephone communications.

3.3 Instructions Contrary to Law/Market Practice

X.X. Xxxxxx need not act upon Instructions which it reasonably believes to be contrary to law, regulation or market practice, and X.X. Xxxxxx shall be under no duty to investigate whether any Instructions comply with Applicable Law or market practice. In the event X.X. Xxxxxx does not act upon such Instructions, X.X. Xxxxxx will notify the Customer within a reasonably practicable time.

3.4 Cut-Off Times

X.X. Xxxxxx has established cut-off times for receipt of Instructions, which will be made available to the Customer. If X.X. Xxxxxx receives an Instruction after its established cut-off time, X.X. Xxxxxx will attempt to act upon the Instruction on the day requested if X.X. Xxxxxx deems it practicable to do so or otherwise as soon as practicable after that day.

3.5 Electronic Access

Access by the Customer to certain applications or products of X.X. Xxxxxx via X.X. Xxxxxx’x web site or otherwise shall be governed by this Agreement and the terms and conditions set forth in Annex A.

4. Fees, Expenses and Other Amounts Owing to X.X. Xxxxxx

4.1 Fees and Expenses

The Customer will pay X.X. Xxxxxx for its services under this Agreement such fees as may be agreed upon in writing from time to time, together with X.X. Xxxxxx’x reasonable out-of-pocket or incidental expenses, including, but not limited to, legal fees and tax or related fees incidental to processing charged directly or indirectly by governmental authorities, issuers, or their agents. Invoices will be payable within thirty (30) days of the date of the invoice. If the Customer disputes an invoice it shall nevertheless pay on or before the date that payment is due such portion of the invoice that is not subject to a bona fide dispute. X.X. Xxxxxx may deduct amounts invoiced from the Cash Account except to the extent that the Customer has objected to the invoice within thirty (30) days of the date of the invoice (or such other period as the parties may agree in writing). Without prejudice to X.X. Xxxxxx’x other rights, X.X. Xxxxxx reserves the right to charge interest on overdue amounts from the due date until actual payment at such rate as X.X. Xxxxxx customarily charges for similar overdue amounts.

4.2 Overdrafts

If a debit to the Cash Account results in a debit balance, then X.X. Xxxxxx may, in its discretion, (i) advance an amount equal to the overdraft, (ii) refuse to settle in whole or in part the transaction causing such debit balance, or (iii) if any such transaction is posted to the Securities Account, reverse any such posting. If X.X. Xxxxxx elects to make such an advance, the advance will be deemed a loan to the Customer, payable on demand, bearing interest at the applicable rate charged by X.X. Xxxxxx from time to time, for such overdrafts, from the date of such advance to the date of payment (including after the date any judgment may be entered against the Customer with respect to any overdraft)

and otherwise on the terms on which X.X. Xxxxxx makes similar overdrafts available from time to time. No prior action or course of dealing on X.X. Xxxxxx’x part with respect to the settlement of transactions on the Customer’s behalf will be asserted by the Customer against X.X. Xxxxxx for X.X. Xxxxxx’x refusal to make advances to the Cash Account or to settle any transaction for which the Customer does not have sufficient available funds in the Account. The Customer shall be deemed to be in default with respect to any such advance upon the occurrence of any event of the type specified in section 365(e)(1) of the U.S. Bankruptcy Code, as amended from time to time.

4.3 X.X. Xxxxxx’x Right Over Securities; Set-off

(a)

Without prejudice to X.X. Xxxxxx’x rights under Applicable Law and to the extent permitted by Applicable Law, X.X. Xxxxxx and its Affiliates shall have, and the Customer grants to X.X. Xxxxxx a security interest in and a lien on the Financial Assets held in the Securities Account as security for any and all Liabilities outstanding from time to time (whether actual or contingent) of the Customer to X.X. Xxxxxx or any of its Affiliates, and X.X. Xxxxxx shall be entitled without notice to the Customer, to withhold delivery of such Financial Assets, sell or otherwise realize any of such Financial Assets and to apply the proceeds and any other monies credited to the Cash Account in satisfaction of such Liabilities.

(b)

Without prejudice to X.X. Xxxxxx’x rights under Applicable Law and to the extent permitted by Applicable Law, X.X. Xxxxxx may set off against any Liabilities of the Customer to X.X. Xxxxxx or any of its Affiliates any amount in any currency standing to the credit of any of the Customer’s accounts (whether deposit or otherwise) with any X.X. Xxxxxx branch or office or with any Affiliate of X.X. Xxxxxx. For this purpose, X.X. Xxxxxx shall be entitled to accelerate the maturity of any fixed term deposits.

5. Securities Depositories

5.1 Use of Securities Depositories

(a)

X.X. Xxxxxx may deposit Securities with, and hold Securities in any Securities Depository on such terms as such Securities Depository customarily operates and the Customer will provide X.X. Xxxxxx with such documentation or acknowledgements that X.X. Xxxxxx may require to hold the Financial Assets in such Securities Depository.

(b)

Subject to Rule 17f-4 under the Investment Company Act of 1940, as amended, X.X. Xxxxxx is not responsible for the selection or monitoring of such Securities Depository and will not be liable for any act or omission by (or the insolvency of) such Securities Depository. In the event the Customer incurs a loss due to the negligence, willful misconduct, or insolvency of a Securities Depository, X.X. Xxxxxx will make reasonable efforts, in its discretion, to seek recovery from the Securities Depository, but X.X. Xxxxxx will not be obligated to institute legal proceedings, file proof of claim in any insolvency proceeding, or take any similar action.

6. Additional Provisions

6.1 Representations of the Customer and X.X. Xxxxxx

(a)

The Customer represents, warrants and covenants that (i) it has full authority and power, and has obtained all necessary authorizations and consents, to deposit and control the Financial Assets and cash in the Accounts, to use X.X. Xxxxxx as its custodian in accordance with the terms of this Agreement, to borrow money (either short term or intraday borrowings in order to settle transactions prior to receipt of covering funds), and xxxxx x xxxx over Financial Assets as contemplated by Section 4.3; (ii) assuming execution and delivery of this Agreement by X.X. Xxxxxx, this Agreement is the Customer’s legal, valid and binding obligation, enforceable against the Customer in accordance with its terms and it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement; (iii) it has not relied on any oral or written representation made by X.X. Xxxxxx or any person on its behalf, and acknowledges that this Agreement sets out to the fullest extent the duties of X.X. Xxxxxx; (iv) it is a resident of the United States and shall notify X.X. Xxxxxx of any changes in residency; and (v) the Financial Assets and cash deposited in the Accounts are not subject to any encumbrance or security interest whatsoever and the Customer undertakes that, so long as Liabilities are outstanding, it will not create or permit to subsist any encumbrance or security interest over such Financial Assets or cash.

X.X. Xxxxxx may rely upon the certification of such other facts as may be required to administer X.X. Xxxxxx’x obligations under this Agreement and the Customer shall indemnify X.X. Xxxxxx against all losses, liability, claims or demands arising directly or indirectly from any such certifications.

(b)

X.X. Xxxxxx represents and warrants that (i) assuming execution and delivery of this Agreement by the Customer, this Agreement is X.X. Xxxxxx’x legal, valid and binding obligation, enforceable against X.X. Xxxxxx in accordance with its terms, (ii) it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement, and (iii) it is a qualified custodian under Section 17(f) of the Investment Company Act of 1940, as amended.

6.2

The Customer is Liable to X.X. Xxxxxx Even if it is Acting for Another Person

If the Customer is acting as an agent or for another person as envisaged in Section 2.1(a) in respect of any transaction, cash or Financial Asset, X.X. Xxxxxx nevertheless will treat the Customer as its principal for all purposes under this Agreement. In this regard, the Customer will be liable to X.X. Xxxxxx as a principal in respect of any transactions relating to the Account. The foregoing will not affect any rights X.X. Xxxxxx might have against the Customer’s principal or the other person envisaged by Section 2.1(a).

7. When X.X. Xxxxxx is Liable to the Customer

7.1 Standard of Care; Liability

(a)

X.X. Xxxxxx will use reasonable care in performing its obligations under this Agreement. X.X. Xxxxxx will not be in violation of this Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care.

(b)

X.X. Xxxxxx will be liable for the Customer’s direct damages to the extent they result from X.X. Xxxxxx’x fraud, negligence or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances will X.X. Xxxxxx be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to the Accounts, X.X. Xxxxxx’x performance under this Agreement, or X.X. Xxxxxx’x role as custodian.

(c)

The Customer will indemnify the X.X. Xxxxxx Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of the X.X. Xxxxxx Indemnitees in connection with or arising out of (i) X.X. Xxxxxx’x performance under this Agreement, provided the X.X. Xxxxxx Indemnitees have not acted with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question or (ii) any X.X. Xxxxxx Indemnitees’ status as a holder of record of the Customer’s Financial Assets.

(d)

Without limiting Subsections 7.1(a), (b) or (c), the Customer agrees that X.X. Xxxxxx provides no service in relation to, and therefore has no duty or responsibility to:

(i)

subject to the requirements under Section 3, question Instructions or make any suggestions to the Customer or an Authorized Person regarding such Instructions;

(ii)

supervise or make recommendations with respect to investments or the retention of Financial Assets;

(iii)

advise the Customer or an Authorized Person regarding any default in the payment of principal or income of any Security other than as provided in Section 2.7(b) of this Agreement; and

(iv)

evaluate or report to the Customer or an Authorized Person regarding the financial condition of any broker, agent or other party to which X.X. Xxxxxx is instructed to deliver Financial Assets or cash.

7.2 Force Majeure

X.X. Xxxxxx will maintain and update from time to time business continuation and disaster recovery procedures with respect to its custody business that it determines from time to time meet reasonable commercial standards. X.X. Xxxxxx will have no liability, however, for any damage, loss, expense or liability of any nature that the Customer may suffer or incur, caused by an act of God, fire, flood, civil or labor disturbance, war, terrorism, act of any governmental authority or other act or threat of any authority (de jure or de facto), legal constraint, fraud or forgery (other than on the part of X.X. Xxxxxx or its employees), malfunction of equipment or software (except where such malfunction is primarily and

directly attributable to X.X. Xxxxxx’x negligence in maintaining the equipment or software), failure of or the effect of rules or operations of any external funds transfer system, inability to obtain or interruption of external communications facilities, or any other cause beyond the reasonable control of X.X. Xxxxxx (including, without limitation, the non-availability of appropriate foreign exchange); provided, that X.X. Xxxxxx will inform the Customer within a reasonably practicable time upon the occurrence of any such event and will use its reasonable efforts to mitigate any losses the Customer may suffer as a result thereof.

7.3 X.X. Xxxxxx May Consult With Counsel

X.X. Xxxxxx will be entitled to rely on, and may act upon the advice of professional advisors in relation to matters of law, regulation or market practice (which may be the professional advisors of the Customer), and will not be liable to the Customer under this Agreement for any action taken or omitted pursuant to such advice, provided that X.X. Xxxxxx has acted with reasonable care.

7.4 X.X. Xxxxxx Provides Diverse Financial Services and May Generate Profits as a Result

The Customer hereby authorizes X.X. Xxxxxx to act under this Agreement notwithstanding that: (a) X.X. Xxxxxx or any of its divisions, branches or Affiliates may have a material interest in transactions entered into by the Customer with respect to the Account or that circumstances are such that X.X. Xxxxxx may have a potential conflict of duty or interest, including the fact that X.X. Xxxxxx or its Affiliates may act as a market maker in the Financial Assets to which Instructions relate, provide brokerage services to other customers, act as financial adviser to the issuer of such Financial Assets, act in the same transaction as agent for more than one customer, have a material interest in the issue of the Financial Assets; or earn profits from any of the activities listed herein and (b) X.X. Xxxxxx or any of its divisions, branches or Affiliates may be in possession of information tending to show that the Instructions received may not be in the best interests of the Customer. Except as required by Applicable Law, X.X. Xxxxxx is not under any duty to disclose any such information.

7.5 Assets Held Outside X.X. Xxxxxx’x Control

X.X. Xxxxxx will not be obliged to (a) hold Financial Assets or cash with any person not agreed to by X.X. Xxxxxx or (b) register or record Financial Assets in the name of any person not agreed to by X.X. Xxxxxx. Furthermore, X.X. Xxxxxx will not be obliged to register or record on X.X. Xxxxxx’x records Financial Assets held outside X.X. Xxxxxx’x control. If, however, the Customer makes any such request and X.X. Xxxxxx agrees to the request, the consequences of doing so will be at the Customer’s own risk. X.X. Xxxxxx shall not be liable for any losses incurred as a result and may be precluded from providing some of the services referred to in this Agreement (for example, and without limitation, income collection, proxy voting, class action litigation and Corporate Action notification and processing).

7.6 Ancillary Services

X.X. Xxxxxx may use third party delivery services and providers of information regarding matters such as pricing, proxy voting, corporate actions and class action litigation and use local agents to provide extraordinary services such as attendance at annual meetings of issuers of Securities. X.X. Xxxxxx will not be responsible for any errors or omissions made by third party providers and agents in providing the relevant information or services, provided that X.X. Xxxxxx exercised reasonable care in the selection and retention of such third party providers and agents.

8. Taxation

8.1 Tax Obligations

(a)

The Customer will pay or reimburse X.X. Xxxxxx, and confirms that X.X. Xxxxxx is authorized to deduct from any cash received or credited to the Cash Account any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Customer’s Accounts.

(b)

The Customer will provide to X.X. Xxxxxx such certifications, declarations, documentation, and information as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Customer undertakes to notify X.X. Xxxxxx immediately if any information requires updating or correcting. X.X. Xxxxxx provides no service of controlling or monitoring, and therefore has no duty in respect of, or liability for any taxes, penalties, interest or additions to tax, payable or paid that result from:

(i)

the inaccurate completion of documents by the Customer or any third party;

(ii)

the provision to X.X. Xxxxxx or a third party of inaccurate or misleading information by the Customer or any third party;

(iii)

the withholding of material information by the Customer or any third party; or

(iv)

any delay by any revenue authority or any other cause beyond X.X. Xxxxxx’x control.

(c)

If X.X. Xxxxxx does not receive appropriate certifications, documentation and information then, as and when appropriate and required, additional tax shall be deducted from all income received in respect of the Financial Assets issued (including, but not limited to, United States non-resident alien tax and/or backup withholding tax).

(d)

The Customer will be responsible in all events for the timely payment of all taxes relating to the Financial Assets in the Securities Account; provided, however, that X.X. Xxxxxx will be responsible for any penalty or additions to tax due solely as a result of X.X. Xxxxxx’x negligent acts or omissions with respect to paying or withholding tax or reporting interest, dividend or other income paid or credited to the Cash Account.

8.2 Tax Relief Services With Respect to American Depository Receipts

(a)

Subject to the provisions of this Section, X.X. Xxxxxx will apply for a reduction of withholding tax in respect of income payments on Financial Assets comprised of American Depository Receipts (“ADRs”) credited to the Securities Account that X.X. Xxxxxx believes may be available to Customer. To defray expenses pertaining to nominal tax claims, X.X. Xxxxxx may from time to time set minimum thresholds as to a de minimis value of tax relief claims which it will pursue in respect of income payments under this Section.

(b)

The provision of a tax relief service on ADRs by X.X. Xxxxxx is conditional upon X.X. Xxxxxx receiving from Customer (i) a declaration of its identity and place of residence and (ii) certain other documentation (pro forma copies of which are available from X.X. Xxxxxx), prior to the receipt of Financial Assets comprised of ADRs in the Securities Account or the payment of income. If Financial Assets comprised of ADRs credited to the Securities Account are beneficially owned by someone other than Customer, this information will need to be provided to X.X. Xxxxxx with respect to the beneficial owner. Customer acknowledges that X.X. Xxxxxx will be unable to perform tax relief services unless it receives this information prior to the receipt of ADRs in the Securities Account or the payment of income.

9. Termination

9.1 Term and Termination

(a)

The initial term of this Agreement shall be for a period of three years following the date on which X.X. Xxxxxx commenced providing services under the Agreement. Following the initial term, the Customer may terminate this Agreement on sixty (60) days’ written notice to X.X. Xxxxxx. X.X. Xxxxxx may terminate this Agreement on one hundred and eighty (180) days’ written notice to the Customer.

(b)

Notwithstanding Section 9.1(a):

(i)

Either party may terminate this Agreement immediately on written notice to the other party in the event that a material breach of this Agreement by the other party has not been cured within thirty (30) days of that party being given written notice of the material breach;

(ii)

Either party may terminate this Agreement immediately on written notice to the other party upon the other party being declared bankrupt, entering into a composition with creditors, obtaining a suspension of payment, being put under court controlled management or being the subject of a similar measure;

(iii)

X.X. Xxxxxx may terminate this Agreement on sixty (60) days’ written notice to the Customer in the event that X.X. Xxxxxx reasonably determines that the Customer has ceased to satisfy X.X. Xxxxxx’x customary credit requirements; and

(iv)

Prior to the expiration of the initial term, the Customer may terminate this Agreement at any time without cause on sixty (60) days’ written notice to X.X. Xxxxxx upon payment of a termination fee. The termination fee will be an

amount equal to three (3) times the average monthly fees paid during the three month period prior to the Customer’s notice of termination, or since the date X.X. Xxxxxx commenced providing services under this Agreement if that period is less than three months.

9.2 Exit Procedure

The Customer will provide X.X. Xxxxxx full details of the persons to whom X.X. Xxxxxx must deliver Financial Assets and cash within a reasonable period before the effective time of termination of this Agreement. If the Customer fails to provide such details in a timely manner, X.X. Xxxxxx shall be entitled to continue to be paid fees under this Agreement until such time as it is able to deliver the Financial Assets and cash to a successor custodian, but X.X. Xxxxxx may take such steps as it reasonably determines to be necessary to protect itself following the effective time of termination, including ceasing to provide transaction settlement services in the event that X.X. Xxxxxx is unwilling to assume any related credit risk. X.X. Xxxxxx will in any event be entitled to deduct any amounts owing to it prior to delivery of the Financial Assets and cash (and, accordingly, X.X. Xxxxxx will be entitled to sell Financial Assets and apply the sale proceeds in satisfaction of amounts owing to it). The Customer will reimburse X.X. Xxxxxx promptly for all reasonable out-of-pocket expenses it incurs in delivering Financial Assets upon termination. Termination will not affect any of the liabilities either party owes to the other arising under this Agreement prior to such termination.

10. Miscellaneous

10.1 Notifications

Notices pursuant to Section 9 of this Agreement shall be sent or served by registered mail, overnight delivery services, such as Federal Express (FedEx) or United Parcel Service (UPS), etc., courier services or hand delivery to the address of the respective parties as set out on the first page of this Agreement, unless notice of a new address is given to the other party in writing.

10.2 Successors and Assigns

This Agreement will be binding on each of the parties’ successors and assigns, but the parties agree that neither party can assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; except X.X. Xxxxxx may assign this Agreement without the Customer’s consent to (a) any Affiliate or subsidiary of X.X. Xxxxxx or (b) in connection with a merger, reorganization, stock sale or sale of all or substantially all of X.X. Xxxxxx’x custody business; provided that in the case of any such assignment, the Customer will have the right to terminate this Agreement immediately without payment of any termination fee.

10.3 Entire Agreement

This Agreement, including the Schedules, Exhibits and Riders (and any separate agreement which X.X. Xxxxxx and the Customer may enter into with respect to any Cash Account), sets out the entire Agreement between the parties in connection with the subject matter hereof, and this Agreement supersedes any other agreement, statement or representation relating to custody, whether oral or written. Amendments must be in writing and, except where this Agreement provides for amendments by notice from X.X. Xxxxxx, signed by both parties.

10.4 Insurance

The Customer acknowledges that X.X. Xxxxxx will not be required to maintain any insurance coverage specifically for the benefit of the Customer. X.X. Xxxxxx will, however, provide summary information regarding its own general insurance coverage to the Customer upon written request.

10.5 Security Holding Disclosure

With respect to Securities and Exchange Commission Rule 14b-2 under The U.S. Shareholder Communications Act regarding disclosure of beneficial owners to issuers of Securities, X.X. Xxxxxx is instructed not to disclose the name, address or Security positions of the Customer in response to shareholder communications requests regarding the Account.

10.6 USA PATRIOT Act Disclosure

Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires X.X. Xxxxxx to implement reasonable procedures to verify the identity of any person that opens a new Account with it. Accordingly, the Customer acknowledges that Section 326 of the USA PATRIOT Act and X.X. Xxxxxx’x identity verification procedures require X.X. Xxxxxx to obtain information which may be used to confirm the Customer’s identity, including without limitation the Customer’s name, address and organizational documents (“identifying information”). The Customer may also be asked to provide information about its financial status, such as its current audited and unaudited financial statements. The Customer agrees to provide X.X. Xxxxxx with and consents to X.X. Xxxxxx obtaining from third parties any such identifying and financial information required as a condition of opening an account with or using any service provided by X.X. Xxxxxx.

10.7 Governing Law and Jurisdiction

This Agreement will be construed, regulated and administered under the laws of the United States or State of New York, as applicable, without regard to New York’s principles regarding conflict of laws, except that the foregoing shall not reduce any statutory right to choose New York law or forum. The United States District Court for the Southern District of New York will have the sole and exclusive jurisdiction over any lawsuit or other judicial proceeding relating to or arising from this Agreement. If that court lacks federal subject matter jurisdiction, the Supreme Court of the State of New York, New York County will have sole and exclusive jurisdiction. Either of these courts will have the

proper venue for any such lawsuit or judicial proceeding, and the parties waive any objection to venue or their convenience as a forum. The parties agree to submit to the jurisdiction of any of the courts specified and to accept service of process to vest personal jurisdiction over them in any of these courts. The parties further hereby knowingly, voluntarily and intentionally waive, to the fullest extent permitted by Applicable Law, any right to a trial by jury with respect to any such lawsuit or judicial proceeding arising or relating to this Agreement or the transactions contemplated hereby. To the extent that in any jurisdiction the 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, the Customer shall not claim, and it hereby irrevocably waives, such immunity.

10.8 Severability; Waiver; and Survival

(a)

If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired.

(b)

Except as otherwise provided herein, no failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default, is effective unless it is in writing and signed by the party against whom the waiver is to be enforced.

(c)

The parties’ rights, protections, and remedies under this Agreement shall survive its termination.

10.9 Confidentiality

(a)

Subject to Section 10.9(b), X.X. Xxxxxx will hold all Confidential Information in confidence and will not disclose any Confidential Information except as may be required by Applicable Law, a regulator with jurisdiction over X.X. Xxxxxx’x business, or with the consent of the Customer.

(b)

The Customer authorizes X.X. Xxxxxx to disclose Confidential Information to:

(i)

any subcontractor, agent, Securities Depository, securities exchange, broker, third party agent, proxy solicitor, issuer, or any other person that X.X. Xxxxxx believes it is reasonably required in connection with X.X. Xxxxxx’x provision of relevant services under this Agreement;

(ii)

its professional advisors, auditors or public accountants;

(iii)

its Affiliates and branches; and

(iv)

any revenue authority or any governmental entity in relation to the processing of any tax relief claim.

(c)

Except as otherwise required by Applicable Law or as needed to enforce the terms of this Agreement, the parties shall hold the terms and conditions, including, without limitation, any commercial terms, of this Agreement in confidence.

(d)

X.X. Xxxxxx agrees to (i) cause any person to whom it discloses any Confidential Information to keep such information confidential to the same extent required of X.X. Xxxxxx pursuant to this Agreement or otherwise and (ii) be responsible and liable for any breach of confidentiality by any such person, except in the case of any disclosure required to be made by Applicable Law.

10.10 Counterparts

This Agreement may be executed in several counterparts each of which will be deemed to be an original and together will constitute one and the same agreement.

10.11 No Third Party Beneficiaries

A person who is not a party to this Agreement shall have no right to enforce any term of this Agreement.

TRIANGLE FUND LLC			JPMORGAN CHASE BANK, N.A
By:			By:
Name:			Name:
Title:			Title:
Date:			Date:

SCHEDULE 1

Form of Board Resolution

To: JPMorgan Chase Bank, N.A.

...............................20...

We hereby certify that the following is a true copy of the minutes of the Board of Directors of .........................................................................................* (the “Company”) which was duly called and held on ......................................, 20....... and at which a duly qualified quorum was present throughout and entitled to vote.

There was produced to the meeting a form of Custody Agreement provided by JPMorgan Chase Bank, N.A. (“X.X. Xxxxxx”) for use in connection with the opening of one or more cash and securities accounts and the conduct of such other transactions between the Company and X.X. Xxxxxx as referred to therein. The form of Custody Agreement produced had been completed by an officer of the Company, and in particular it was noted that details of the Authorized Persons (as defined therein) and details of persons authorized to give instructions on behalf of the Company had been provided to X.X. Xxxxxx. Details of any Fund Managers and Advisers had also been provided to X.X. Xxxxxx. The indemnities given to X.X. Xxxxxx in the Custody Agreement were also noted. The meeting considered the form of the Custody Agreement.

IT WAS RESOLVED that the form of Custody Agreement (together with the Schedule and Appendices), completed in the manner and form produced at the meeting, be and is hereby approved and that ....................................................................................................................** be and he/she is hereby authorized, for and on behalf of the Company, to sign and deliver the same together with such changes and amendments thereto as he/she may in his/her sole discretion think fit.

There was produced to the meeting a form of power of attorney (“power of attorney”) to be given by the Company to X.X. Xxxxxx to enable X.X. Xxxxxx to provide tax reclaim services as provided for in the Custody Agreement. The meeting considered the form of the power of attorney and in particular the indemnities contained in it. IT WAS RESOLVED that that power of attorney be and it is hereby approved and that it be executed under seal in accordance with the Company’s constitution.

........................................................................ Director

_________________________

*Name of Company in full.

........................................................................ Secretary

ANNEX A

Electronic Access

1 . X.X. Xxxxxx may permit the Customer and its Authorized Persons to access certain electronic systems, applications and Data (as defined below) in connection with the Agreement (collectively, the “Products”). X.X. Xxxxxx may, from time to time, introduce new features to the Products or otherwise modify or delete existing features of the Products in its sole discretion. X.X. Xxxxxx shall endeavor to give the Customer reasonable notice of its termination or suspension of access to the Products, but may do so immediately if X.X. Xxxxxx determines, in its sole discretion, that providing access to the Products would violate Applicable Law or that the security or integrity of the Products is at risk. Access to the Products shall be subject to the Security Procedures.

2. In consideration of the fees paid by the Customer to X.X. Xxxxxx and subject to any applicable software license addendum in relation to X.X. Xxxxxx-owned or sublicensed software provided for a particular application and Applicable Law, X.X. Xxxxxx grants to the Customer a non-exclusive, non-transferable, limited and revocable license to use the Products and the information and data made available through the Products (the “Data”) for the Customer’s internal business use only. The Customer may download the Data and print out hard copies for its reference, provided that it does not remove any copyright or other notices contained therein. The license granted herein will permit use by Customer’s Authorized Person, provided that such use shall be in compliance with the Agreement, including this Annex.

3. The Customer acknowledges that there are security, corruption, transaction error and access availability risks associated with using open networks such as the internet, and the Customer hereby expressly assumes such risks. The Customer is solely responsible for obtaining, maintaining and operating all software (including antivirus software, anti-spyware software, and other internet security software) and personnel necessary for the Customer to access and use the Products. All such software must be interoperable with X.X. Xxxxxx’x software. Each of the Customer and X.X. Xxxxxx shall be responsible for the proper functioning, maintenance and security of its own systems, services, software and other equipment.

4. In cases where X.X. Xxxxxx’x web site is unexpectedly down or otherwise unavailable, X.X. Xxxxxx shall, absent a force majeure event, provide other appropriate means for the Customer or its Authorized Persons to instruct X.X. Xxxxxx or obtain reports from X.X. Xxxxxx. X.X. Xxxxxx shall not be liable for any Liabilities arising out of Customer’s use of, access to or inability to use the Products via X.X. Xxxxxx’x web site in the absence of X.X. Xxxxxx’x xxxxx negligence or willful misconduct.

5. Use of the Products may be monitored, tracked, and recorded. In using the Products, the Customer hereby expressly consents to such monitoring, tracking, and recording. Individuals and organizations should have no expectation of privacy unless local law, regulation, or contract provides otherwise. X.X. Xxxxxx shall own all right, title and interest in the data reflecting Customer usage of the Products or X.X. Xxxxxx’x web site (including, but not limited to, general usage data and aggregated transaction data). X.X. Xxxxxx may use and sublicense data obtained by it regarding the Customer’s use of the Products or X.X. Xxxxxx’x website, as long as J.P.

Xxxxxx does not disclose to others that the Customer was the source of such data or the details of individual transactions effected using the Products or web site.

6. The Customer shall not knowingly use the Products to transmit (i) any virus, worm, or destructive element or any programs or data that may be reasonably expected to interfere with or disrupt the Products or servers connected to the Products; (ii) material that violates the rights of another, including but not limited to the intellectual property rights of another; and (iii) “junk mail”, “spam”, “chain letters” or unsolicited mass distribution of e-mail.

7. The Customer shall promptly and accurately designate in writing to X.X. Xxxxxx the geographic location of its users upon written request. The Customer further represents and warrants to X.X. Xxxxxx that the Customer shall not access the service from any jurisdiction which X.X. Xxxxxx informs the Customer or where the Customer has actual knowledge that the service is not authorized for use due to local regulations or laws, including applicable software export rules and regulations. Prior to submitting any document which designates the persons authorized to act on the Customer’s behalf, the Customer shall obtain from each individual referred to in such document all necessary consents to enable X.X. Xxxxxx to process the data set out therein for the purposes of providing the Products.

8. The Customer will be subject to and shall comply with all applicable laws, rules and regulations concerning restricting collection, use, disclosure, processing and free movement of the Data (collectively, the “Privacy Regulations”). The Privacy Regulations may include, as applicable, the Federal “Privacy of Consumer Financial Information” Regulation (12 CFR Part 30), as amended from time to time, issued pursuant to Section 504 of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (15 X.X.X. §0000, et seq.), the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d), The Data Protection Xxx 0000 and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to processing of personal data and the free movement of such data.

9. The Customer shall be responsible for the compliance of its Authorized Persons with the terms of the Agreement, including this Annex.

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Table of Contents

Domestic Custody Agreement 1 1. INTENTION OF THE PARTIES; DEFINITIONS 1 1.1 Intention of the Parties 1 1.2 Definitions; Interpretation 1 2. What J.P. Morgan is Required to Do 3 2.1 Set Up Accounts 3 2.2 Cash Account 4 2.3 Segregation of Assets;...

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