EXHIBIT 99.B8(b)
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Nations Annuity Trust
Global Custody Agreement
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Global Custody Agreement
Agreement dated as of February __, 1998, between The Bank of New York
(the "Custodian"), acting through its office at 00 xxxxxx xxx Xxxx,
Xxxxxxxx, Xxxxxxx, and Nations Annuity Trust (the "Client"), on behalf
of the portfolios listed on Appendix F (individually a "Portfolio" and
collectively the "Portfolios").
Whereas, the Client desires to arrange for the custody of certain of its
assets and the provision of related services by the Custodian;
Now, Therefore, in consideration of the mutual agreements contained
herein, the Custodian and the Client agree as follows:
1. Definition
The following terms, as used herein, shall have the following meanings:
"Authorized Instruction" means (i) a written, oral or electronic
communication accepted by the Custodian in good faith that has been
transmitted subject to the Security Procedures agreed upon in writing by
the Custodian and the Client or (ii) any other written, oral or
electronic communication that the Custodian believes in good faith to
have been given by an Authorized Person. In the event the Client chooses
to use facsimile as a method of communication hereunder, the Custodian
requires the use of a test key facility, or in such absence, a letter of
indemnification to the Custodian in form and substance satisfactory to
it.
"Authorized Persons" means those individuals who have been designated by
or duly authorized by the Client pursuant to necessary corporate or
other action (which shall be evidenced by appropriate documentation
delivered to the Custodian) to act on behalf of the Client in connection
with this Agreement. Such persons shall continue to be Authorized
Persons until such time as the Client has delivered to the Custodian
appropriate documents revoking the authority of such persons.
"Cash" has the meaning set forth in Section 5.
"Cash Account" means a current account (which may be divided into a
number of subaccounts, denominated in U.S. dollars, Belgian francs or
any other currency or Composite Currency Unit acceptable to the
Custodian) opened by the Custodian on its books in the name of the
Client on behalf of a Portfolio.
"Communication Products" has the meaning set forth in Section 26.
"Composite Currency Units" means the European Currency Unit ("ECU"), the
Special Drawing Right ("SDR") or another composite unit consisting of
the aggregate of specified amounts of specified currencies, as such ECU,
SDR or other unit may be constituted from time to time.
"IMRO Rules" means the rules of the Investment Management Regulatory
Organization Limited, as in effect on the date hereof.
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"BONY Affiliate" means any office or branch of The Bank of New York
("BONY") and any other entity that directly, or indirectly through one
or more intermediaries, controls BONY or that is controlled by or is
under common control with BONY.
"Securities Account" means any securities account opened by the
Custodian on its books in the name of the Client on behalf of a
Portfolio.
"Securities Depository" means any securities depository, book-entry
system or clearing system used by the Custodian from time to time in
accordance with Section 4(e) hereof.
"Security" means any share, stock, bond, debenture, note, certificate of
indebtedness, warrant or other security or financial instrument
acceptable to the Custodian (whether represented by a certificate or by
a book-entry on the records of the issuer or other entity responsible
for recording such book-entries) that is from time to time held for the
account of a Portfolio directly, or indirectly through a subcustodian or
Securities Depository, by the Custodian pursuant to this Agreement.
"Security Procedure" means, for any specified method of communication, a
procedure agreed upon in writing by the Custodian and the Client for the
purpose of verifying that an Authorized Instruction given pursuant to
such method of communication is that of the Client or detecting error in
the transmission or the content of such Authorized Instruction. A
Security Procedure may require the use of algorithms or other codes,
identifying words or numbers, encryption, callback procedures, or
similar security devices.
"Subcustodian" means any bank or other institution (other than a
Securities Depository) used by the Custodian to hold Securities from
time to time in accordance with Section 4(e) hereof.
"Tax" has the meaning set forth in Section 9.
2. Representations, Warranties and Covenants of the Client
The Client represents and warrants that the execution, delivery and
performance by the Client of this Agreement (i) are within the Client's
corporate, trust or other constitutive powers; (ii) have been duly
authorized by all necessary corporate, trust or other appropriate action
under its organizational documents; (iii) require no action by or in
respect of, any governmental body, agency or official (including without
limitation any exchange control approvals); and (iv) do not contravene,
or constitute a default under, any provision of applicable law or
regulation or of the organizational documents of the Client or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Client. The Client represents, warrants and covenants
that the Custodian shall be entitled to transfer all Securities, in
accordance with Authorized Instructions, free of any proprietary or
equitable interest of any person or entity (other than interests of the
Portfolios of the Client and interests of the Custodian, Subcustodians
and Securities Depositories that are created by this Agreement). The
Client agrees to inform the Custodian immediately if any statement set
forth in this Section 2 ceases to be true and correct as of any date
after the date hereof.
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3. Securities Accounts
The Client hereby establishes with the Custodian one or more Securities
Accounts, which shall contain, in the manner and on the terms specified
herein, each Portfolio's Securities.
4. Terms of Custody
(a) Authority to Hold Securities. Subject to the terms and conditions of
this Agreement, the Client hereby authorizes the Custodian to hold any
Securities received from time to time for the account of the Client. The
Custodian may, at its sole discretion, hold the Securities directly or
indirectly through one or more eligible Subcustodians or Securities
Depositories. Securities held indirectly through any Subcustodian shall
be held subject to the terms and conditions of the Custodian's agreement
with such Subcustodian. Securities held indirectly through any
Securities Depository shall be held subject to the terms of any
agreement between the Custodian or Subcustodian and such Securities
Depository and to the rules and terms and conditions of such Securities
Depository.
(b) Fungibility. All Securities of any issue shall be treated as
fungible with all other Securities of the same issue held by the
Custodian directly, or indirectly through any Subcustodian or Securities
Depository. Therefore, the Client shall have no right to any specific
securities of an issue but shall instead be entitled, subject to
applicable laws and regulations and to the terms of this Agreement, to
transfer, deliver or repossess from the Custodian an amount of
securities of such issue that is equivalent to the amount of such
securities credited to a Securities Account, without regard to the
certificate numbers (or other identifying information) of the Securities
originally deposited, and the Custodian's obligation to the Client with
respect to such Securities shall be limited to effecting such transfer,
delivery or repossession.
(c) Identification of Client's Interests. The Custodian shall cause the
Client's interest in any Securities held by the Custodian directly, or
indirectly through any Subcustodian or Securities Depository, to be
evidenced by a credit to a Securities Account on the books of the
Custodian. The Custodian shall instruct each Subcustodian to credit all
Securities held by such Subcustodian directly, or indirectly through a
Securities Depository, to an account of the Custodian on the books of
such Subcustodian. The Custodian shall instruct, or direct the relevant
Subcustodian to instruct, each Securities Depository to credit all
Securities held by such Securities Depository to an account of the
Custodian or the relevant Subcustodian on the books of such Securities
Depository. Securities may be registered in the name of the Custodian's
nominee or, as to any Securities held by an entity other than the
Custodian, in the name of such entity's nominee. The Client agrees to
hold any such nominee harmless from any liability but only as a holder
of record of such Securities.
(d) Liens of Subcustodians and Securities Depositories. Unless the
Custodian has received Authorized Instructions to the contrary, the
Custodian shall hold Securities indirectly through a Subcustodian or
Securities Depository only if (i) the Securities are not subject to any
right, charge, security interest, lien or claim of any kind in favor of
such Subcustodian or Securities Depository or the creditors or operators
of any of them, including a receiver or trustee in bankruptcy or similar
authority, except for a claim of payment for the safe custody or
administration of the Securities or for Portfolios advanced on behalf of
the Client by such
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Subcustodian or Securities Depository and (ii) beneficial ownership of
the Securities is freely transferable without the payment of money or
value other than for safe custody or administration.
(e) Selection of Subcustodians and Securities Depositories. The list of
Subcustodians and Securities Depositories used by the Custodian as of
the date hereof is listed on Appendices A1 and A2 hereto. The Custodian
reserves the right to add and delete eligible Subcustodians and
Securities Depositories to and from such list from time to time by
notice to the Client, provided that any Subcustodians that are added
shall constitute an "Eligible Foreign Custodian" within the meaning of
Rule 17f-5 under the Investment Company Act of 1940 (the "1940 Act").
The Custodian agrees to promptly notify Client if it learns that any
Subcustodian no longer constitutes an "Eligible Foreign Custodian" and
of any failure by any Subcustodian to observe any material term of its
appointment. The Custodian agrees that if it replaces the Subcustodian
or Securities Depository used in any country with another Subcustodian
or Securities Depository, it will not transfer any of the Client's
Securities from the former Subcustodian or Securities Depository for
such country to the replacement Subcustodian or Securities Depository
for such country without giving the Client at least 60 days' prior
written notice.
(f) Notwithstanding anything herein to the contrary, neither the
Custodian nor Subcustodian shall have the authority to pledge or lend
any securities.
5. Cash Account
(a) The Client hereby establishes and shall maintain with the Custodian
a Cash Account to be used in connection with transactions relating to
the Securities. The collected balance from time to time in the Cash
Account shall constitute "Cash". Any credit made to the Cash Account
shall be provisional and may be reversed if such payment is not actually
collected or received.
(b) Except as otherwise provided by law, the Cash Account (including
subdivisions maintained in different currencies, including Composite
Currency Units) shall constitute one single and indivisible current
account. Consequently, the Custodian has the option of transferring the
balance of any subaccount of the Cash Account to any other subaccount at
any time provided prior notice.
(c) The Custodian may in accordance with customary practice hold any
currency (other than Belgian Francs) or Composite Currency Unit in which
any subdivision of the Cash Account is denominated on deposit in, and
effect transactions relating thereto through, an account (a "Foreign
Account") with a BONY Affiliate or another bank in the country where
such currency is the lawful currency or in other countries where such
currency or Composite Currency Unit may be lawfully held on deposit.
(d) The Custodian shall have no liability for any loss or damage arising
from the applicability of any law or regulation now or hereafter in
effect, or from the occurrence of any event, which may affect the
transferability, convertibility, or availability of any currency (other
than Belgian Francs) or Composite Currency Unit in the countries where
such Foreign Accounts are maintained and in no event shall the Custodian
be obligated to substitute another currency for a currency (including a
currency that is a component of a Composite Currency Unit) whose
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transferability, convertibility or availability has been affected by
such law, regulation or event. To the extent that any such law,
regulation or event imposes a cost or charge upon the Custodian in
relation to the transferability, convertibility, or availability of any
such currency or Composite Currency Unit, such cost or charge shall be
for the account of the Client. If pursuant to any such law or
regulation, or as a result of any such event, the Custodian cannot deal
in any component currency of a Composite Currency Unit or effect a
particular transaction in a Composite Currency Unit on behalf of the
Client, the Custodian may thereafter treat any account denominated in an
affected Composite Currency Unit as a group of separate accounts
denominated in the relevant component currencies.
(e) Transactions in a currency or Composite Currency Unit shall be
subject to the regulations laid down by the exchange control authorities
of Belgium and of the country where such currency (or component
currency) is the lawful currency or where such currency or Composite
Currency Unit is held on deposit. The Client's Cash Account will be
governed further in accordance with the Service Level Description.
Instructions by the Client
(a) Generally. The Client shall give an Authorized Instruction with
respect to Cash and Securities only to the Custodian or to the
Custodian's designee. The Client agrees to be bound by all Authorized
Instructions, whether or not such instructions were duly authorized in
accordance with the Client's own procedures. The Custodian shall not be
required to follow any Authorized Instruction that would violate any
applicable law, decree, regulation or order of any government or
governmental body (including any court or tribunal) or that would be
contrary to any provision of this Agreement.
(b) Payments. Payments shall be made by the Custodian, or a Subcustodian
at the direction of the Custodian, only to the extent that sufficient
Cash in the applicable currency is available in the Cash Account or
otherwise available therefor and only (i) as specified by an Authorized
Instruction, (ii) as permitted by Sections 14 and 15 or (iii) upon the
termination of this Agreement as set forth in Section 16 hereof. The
Custodian may make payments, or direct a Subcustodian to make payments,
from time to time on behalf of the Client when sufficient Cash in the
applicable currency is not available in the Cash Account or otherwise
available therefor, but neither the Custodian nor any Subcustodian shall
have any obligation to make such payments. If any payments are made that
result in an overdraft in a particular currency, then such overdraft
shall be payable on demand by the Custodian and shall bear interest for
each day outstanding at the rate customarily charged by the Custodian
for overdrafts in such currency.
(c) Delivery of Securities. Any Securities held by a Subcustodian shall
be subject only to the instructions of the Custodian and any Securities
held by a Securities Depository shall be subject only to the
instructions of the Custodian or the Subcustodian for which such
Securities Depository is acting. Securities shall be transferred,
exchanged, or delivered by the Custodian, or a Subcustodian at the
direction of the Custodian, only to the extent that sufficient
Securities are actually in a Securities Account and available for
delivery and only:
(i) As specified by an Authorized Instruction;
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(ii) In exchange for or upon conversion into other Securities or
Cash pursuant to a plan of merger, consolidation,
reorganization, recapitalization or readjustment;
(iii) Upon the conversion of Securities pursuant to their terms into
other Securities;
(iv) As permitted by Sections 14; or
(v) Upon the termination of this Agreement as set forth in Section
16 hereof.
7. Corporate Events
(a) Collections. Unless the Custodian has received an Authorized
Instruction to the contrary, the Custodian shall, or shall instruct the
appropriate Subcustodian to, collect dividends, interest and other
payments made and stock dividends, rights and similar distributions made
or issued with respect to Securities and present for payment maturing
Securities and those called for redemption, in each case net of any
applicable taxes or other charges withheld by the maker of such payment
or distribution. Neither the Custodian nor any Subcustodian shall have
any obligation to commence legal proceedings or to take other
extraordinary actions to collect any of the foregoing payments or
distributions.
(b) Rights Offerings. Promptly after the Custodian becomes aware
thereof, the Custodian shall notify the Client of any rights offering by
an issuer of Securities. If the Client does not send an Authorized
Instruction to the Custodian regarding the exercise of rights under such
offering by the reasonable deadline set by the Custodian in such notice,
then to the extent permitted by applicable law and consistent with local
market practice, the Custodian or the applicable Subcustodian shall sell
such rights in the principal market for such rights and deposit the
proceeds of such sale in the Cash Account.
(c) Partial Redemptions. Promptly after the Custodian becomes aware
thereof, the Custodian shall notify the Client of the partial redemption
of any Securities. If the Custodian or any Subcustodian or Securities
Depository holds any Securities in which the Client has an interest as
part of a fungible mass, the Custodian or such Subcustodian or
Securities Depository may select the securities to participate in
partial redemptions, partial payments or other actions affecting less
than all securities of the relevant class in any non-discriminatory
manner that it customarily uses to make such selection.
(d) Authority of Custodian. Unless the Custodian has received an
Authorized Instruction to the contrary, the Custodian shall, or shall
instruct the appropriate Subcustodian to: (i) execute in the name of the
Client such ownership and other certificates as may be required to
obtain payment or exercise any rights in respect of any Securities; (ii)
accept and open all mail directed to the Client in care of the Custodian
or such Subcustodian; and (iii) retain or dispose of fractional
interests received by the Custodian or such Subcustodian as a result of
stock dividends in accordance with local law and practice. With respect
to any corporate events not listed above, the Custodian shall (in the
absence of an Authorized Instruction from the Client within any
prescribed deadline) take any action that it considers appropriate in
the circumstances; provided that the Custodian shall not be liable for
the consequences of any such action.
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The Custodian's duties in relation to Corporate Actions will be governed
further in accordance with the Service Level Description.
8. Reporting
(a) Statements. The Custodian shall mail, or cause to be mailed, or
transmit electronically to the Client (or, with prior written consent of
the Client, make available electronically) monthly statements of the
Securities Accounts and Cash Account for each Portfolio. Such statements
shall list all Securities and Cash and specify (i) whether the
Securities are held directly by the Custodian or indirectly through a
Subcustodian or Securities Depository (ii) the amount of Cash held on
deposit in each currency. The Client agrees that each such statement
shall be binding on the Client 30 days after (a) in the case of any
statement sent by mail, it has been mailed by first class mail, postage
prepaid or (b) in the case of any statement transmitted or made
available electronically, it has been transmitted or made available
electronically to the Client, unless the Client has therefore notified
the Custodian in writing of any inaccuracy in such statement subject
always to the Custodian's overriding duty to reconcile its records to
the Cash and Securities actually held.
(b) Access to Records. The Custodian shall allow the Client and its
independent public accountants reasonable access to the records of the
Custodian relating to the Securities and Cash as is required by the
Client or its accountants in connection with their examination of the
books and records pertaining to the affairs of the Client and shall
require each Subcustodian and Securities Depository to grant such access
to the Client and its independent public accountants to the extent
consistent with applicable law and regulations. The Custodian has no
obligation to maintain any records for a period of more than 10 years.
9. Taxes
The Client 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, Securities or other
property held on behalf of the Client or any transaction related
thereto. The Client shall indemnify the Custodian and each Subcustodian
for the amount of any Tax that the Custodian, any such Subcustodian or
any other withholding agent is required under applicable laws (whether
by assessment or otherwise) to pay on behalf of, or in respect of income
earned by or payments or distributions made to or for the account of,
the Client (including any payment of Tax required by reason of an
earlier failure to withhold) . The Custodian shall, or shall instruct
the applicable Subcustodian or other withholding agent to, withhold the
amount of any Tax which is required to be withheld under applicable law
upon collection of any dividend, interest or other distribution made
with respect to any Security and any proceeds or income from the sale,
loan or other transfer of any Security. In the event that the Custodian
or any Subcustodian is required under applicable law to pay any Tax on
behalf of the Client, the Custodian is hereby authorized to withdraw
Cash from any subaccount of the Cash Account in the amount required to
pay such Tax and to use such Cash, or to remit such Cash to the
appropriate Subcustodian, for the timely payment of such Tax in the
manner required by applicable law. If the aggregate amount of Cash in
all subaccounts of the Cash Account is not sufficient to pay such Tax,
the Custodian shall promptly notify the Client of the additional amount
of Cash (in the appropriate
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currency) required, and the Client shall directly deposit such
additional amount in the Cash Account promptly after receipt of such
notice, for use by the Custodian as specified herein. In the event that
the Client is eligible, pursuant to applicable law or to the provisions
of any tax treaty, for a reduced rate of, or exemption from, any Tax
which is otherwise required to be withheld or paid on behalf of the
Client under any applicable law, the Custodian shall, or shall instruct
the applicable Subcustodian or the withholding agent to, either withhold
or pay such Tax at such reduced rate or refrain from withholding or
paying such Tax, as appropriate; provided that the Custodian shall have
received from the Client all documentary evidence of residence or other
qualifications for such reduced rate or exemption required to be
received under such applicable law or treaty. In the event that a
reduced rate of, or exemption from, any Tax is obtainable only by means
of an application for rePortfolio, then the Custodian and the applicable
Subcustodian shall, upon request, assist the Client with such
applications. Neither the Custodian nor any Subcustodian shall have any
responsibility for the accuracy or validity of any forms or
documentation provided by the Client to the Custodian hereunder, and the
Client hereby indemnifies and agrees to hold harmless the Custodian and
each Subcustodian in respect of any liability arising from any
underwithholding or underpayment of any Tax which results from the
inaccuracy or invalidity of any such forms or other documentation.
10. Responsibilities; Indemnification by the Custodian
(a)(i) Custodian and Indemnified Subcustodians. The Custodian will use
reasonable care in the performance of its duties, exercise the same
degree of care with respect to the Securities as it would with respect
to its own securities and property and indemnify the Client and hold the
Client harmless from any loss or liability (including, without
limitation, the reasonable fees and disbursements of counsel and other
legal advisors) incurred by the Client by reason of the negligence
(whether through action or inaction) or willful misconduct of the
Custodian or any Subcustodian that is a BONY Affiliate or a Subcustodian
that is not a BONY Affiliate ("Non-affiliated Subcustodian") in respect
of which it agrees in this Agreement to indemnify for its negligence
(whether through action or inaction) or willful misconduct ("Indemnified
Non-affiliated Subcustodian") as set forth in Appendix A1, as it may be
amended from time to time.
As a condition precedent to its right to be indemnified under Section
10(a)(i), the Client shall give the Custodian notice in writing as soon
as possible with respect to the following:
Upon receipt of notice from a customer of the Client, whether written or
oral, of an intention to make a claim against the Client with respect to
the negligence (whether through action or inaction) or willful
misconduct of the BONY Affiliate Subcustodian or the Indemnified
Non-affiliated Subcustodian, or the Client becoming aware of
circumstances which may give rise to it suffering a loss or liability as
a result of such negligence or willful misconduct, the Client shall as
soon as reasonably possible after such receipt or becoming so aware,
give reasonable details of such notice or such circumstances to the
Custodian.
As soon as possible thereafter and subject to receipt by it of
sufficient information upon which to make its decision, the Client shall
decide whether or not it wishes to seek indemnify under this Section
10(a)(i) and shall notify the Custodian accordingly.
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The Client agrees that the Custodian shall have the absolute right in
its sole discretion to terminate its indemnification of an Indemnified
Non-affiliated Subcustodian and to classify it in the category of a
Non-indemnified Non-affiliated Subcustodian (as defined hereafter) at
any point during the term of the Custodian's custody of the Securities,
effective upon telephone notice. The Custodian agrees that it shall
provide immediate notice to the Client in writing of such termination of
indemnification. A claim for indemnification of an Indemnified
Non-affiliated Subcustodian shall survive such termination if: (a) the
claim for indemnification is made to the Custodian prior to the
effective time of termination of indemnification (`Indemnification
Termination') or (b) the claim for indemnification arose prior to the
Indemnification Termination and is made within 15 days from the
Indemnification Termination. The parties shall treat an Indemnified
Non-affiliated Subcustodian as a New Subcustodian (as defined hereafter)
pursuant to Section 10(a)(iii) if at any time after the execution of
this Agreement, the Client fails to maintain with the Custodian for a
period of six months any Securities held through an Indemnified
Non-affiliated Subcustodian listed in Appendix A1.
(a)(ii) Non-indemnified Non-Affiliated Subcustodians. The Custodian's
responsibility with respect to any Securities held by a Subcustodian,
other than a BONY Affiliate or an Indemnified Non-affiliated
Subcustodian, (`Non-indemnified Non-affiliated Subcustodian') or any
carrier of Securities acting for the Custodian or any Subcustodian is
limited to the failure on the part of the Custodian (or a Subcustodian
that is a BONY Affiliate or Indemnified Non-affiliated Subcustodian) to
exercise reasonable care in the selection or retention of such
Non-indemnified Non-affiliated Subcustodian or carrier and the Custodian
will hold the Client harmless from and indemnify it against any loss
that occurs as a result of the failure of the Custodian (or such BONY
Affiliate or an Indemnified Non-affiliated Subcustodian) to exercise
such reasonable care. In the event that the Client incurs any loss or
liability (including, without limitation, the reasonable fees and
disbursements of counsel and other legal advisors) directly as the
result of the negligence (whether through action or inaction) or willful
misconduct of any Subcustodian (other than a BONY Affiliate or
Indemnified Non-affiliated Subcustodian), the Custodian will pursue by
all reasonable means the enforcement of all of the rights of the Client
or the Custodian against such Subcustodian in respect thereof; provided,
however, that the Custodian will not be required to initiate legal
proceedings in a court of law. The Custodian may initiate legal
proceedings in a court of law at the Client's request and expense and
subject to any indemnification satisfactory to it.
(a)(iii) New Subcustodians. With respect to any Subcustodian who is not
listed in Appendix A1 hereto ("New Subcustodian"), in countries in which
the Client seeks to invest hereafter, the Client undertakes to provide
written notice to the Custodian promptly of any such new country to
allow the Custodian to act in timely fashion, and the Custodian, in
turn, shall promptly notify the Client if it is willing to indemnify the
Client in respect of the negligence or willful misconduct of a
Non-affiliated Subcustodian. The Custodian shall have no obligation to
provide any indemnification to the Client in respect of any New
Subcustodian and shall have absolute discretion with respect to the
terms and conditions of the indemnification, if any, in respect to any
New Subcustodian; provided, however, that to the extent the Custodian
decides to provide an indemnity in respect to a New Subcustodian such
indemnification shall be in respect to the negligence and willful
misconduct of such New Subcustodian. If, for any reason, the Client
engages in a trade in such new country and instructs the Custodian to
settle it without having
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given the Custodian prior written notice and without having received
notice from the Custodian with respect to indemnification or lack
thereof, the parties hereto shall treat any New Subcustodian for such
new country as a Non-indemnified Non-affiliated Subcustodian. In the
event the Custodian replaces an existing Subcustodian in any country
with another Subcustodian, the new Subcustodian shall also be treated as
a New Subcustodian for purposes of indemnification and the Custodian
shall notify the Client in accordance with Section 18.
(a)(iv) Securities Depositories. The Custodian shall have no
responsibility for the selection or retention of any Securities
Depository or for the performance of any Securities Depository;
provided, however, that the Custodian will pursue by all reasonable
means all of the rights of the Client or the Custodian against such
Securities Depository in respect of any loss or liability incurred by
the Client directly as a result of any negligence or willful misconduct
on the part of the Securities Depository; provided, however, that the
Custodian will not be required to initiate legal proceedings in a court
of law. The Custodian may initiate legal proceedings in a court of law
at the Client's request and expense and subject to any indemnification
satisfactory to it.
(b) Insurance. The Custodian shall, and shall require each Subcustodian
to, maintain insurance coverage with respect to the Securities covering
such risks and in such amounts as the Custodian or such Subcustodian
maintains with respect to Securities which the Custodian or such
Subcustodian holds for its own account and for the account of other
customers.
(c) Indemnification by the Custodian and Subcustodians. The Custodian
shall indemnify the Client against, and hold the Client harmless from,
any loss or liability (including, without limitation, the reasonable
fees and disbursements of counsel and other legal advisors, but
excluding all losses and liabilities of the types described in Section
11 hereof incurred by the Client by reason of the negligence (whether
through action or inaction) or willful misconduct of the Custodian or
any Subcustodian that is a BONY Affiliate in connection with the
services provided pursuant to this Agreement or the applicable
subcustodian agreement. The Custodian shall require each Subcustodian
that is not a BONY Affiliate to indemnify the Custodian and the Client
against, and hold the Custodian and the Client harmless from, any loss
or liability; (including, without limitation, the reasonable fees and
disbursements of counsel, but excluding all losses and liabilities of
the types specified in Section 11) incurred by the Custodian or the
Client by reason of the negligence (whether through action or inaction)
or willful misconduct of such Subcustodian in connection with the
services provided by such Subcustodian pursuant to the applicable
subcustodian agreement.
11. Limitations on Responsibilities and Liabilities
(a) Generally. The Custodian shall be responsible for the performance of
only those duties as are set forth herein or for those specific
operational services as set out in the Service Level Description or
contained in an Authorized Instruction that is not contrary to the
provisions of this Agreement.
(b) Consequential Damages. Under no circumstances shall the Custodian or
any Subcustodian be liable to the Client or any other person for
indirect, special or consequential
10
damages, even if the Custodian or such Subcustodian is apprised of the
likelihood of such damages.
(c) Corporate Actions. The Custodian shall not be liable for any loss
occasioned by the failure of the Custodian to notify the Client of any
payment of dividends or interest or any redemption, rights offering or
other distribution made with respect to any Security or any other
corporate action taken or to be taken with respect to any Security if
the Custodian or a Subcustodian has not received notice of such
transaction directly from or on behalf of the issuer of such Security or
if such distribution or action was not included in the reports of an
internationally-recognized investment data service selected by the
Custodian as governed further in accordance with the Service Level
Description.
(d) Authorized Instructions. Neither the Custodian nor any Subcustodian
shall be liable for any action taken in accordance with an Authorized
Instruction.
(e) Payment and Delivery Instructions. In some securities markets,
securities deliveries and payments therefor may not be or are not
customarily made simultaneously. Accordingly, the Client agrees that,
notwithstanding the Client's instruction to deliver Securities against
payment or to pay for Securities against delivery, the Custodian or a
Subcustodian may make or accept payment for or delivery of Securities at
such time and in such form and manner as shall be in accordance with
relevant local law and practice or with the customs prevailing in the
relevant market among securities dealers The Client shall bear the risk
that (i) the recipient of Securities may fail to make payment, return
such Securities or hold such Securities or the proceeds of their sale in
trust for the Client and (ii) the recipient of payment for Securities
may fail to deliver the Securities (such failure to include, without
limitation, delivery of forged or stolen Securities) or to return such
payment, in each case whether such failure is total or partial or merely
a failure to perform on a timely basis. Neither the Custodian nor any
Subcustodian shall be liable to the Client for any loss resulting from
any of the foregoing events.
(f) Reversals. In some securities markets and cash clearing systems,
deliveries of securities and cash may be reversed under certain
circumstances. Accordingly, credits of Securities to a Securities
Account and Cash to the Cash Account are provisional and subject to
reversal if, in accordance with relevant local law and practice, the
delivery of the security or cash giving rise to the credit is reversed.
(g) Foreign Currency Risks. The Client shall bear all risks of investing
in Securities or holding Cash denominated in a currency other than that
of the Client's home jurisdiction. Without limiting the foregoing, the
Client shall bear the risks that rules or procedures imposed by
Securities Depositories, exchange controls, asset freezes or other laws
or regulations shall prohibit or impose burdens or costs on the transfer
to, by or for the account of the Client of Securities or Cash held
outside the Client's jurisdiction or denominated in a currency other
than the currency of the Client's home jurisdiction or the conversion of
Cash from one currency into another currency. The Custodian shall not be
obligated to substitute another currency for a currency (including a
currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected by
such law, regulation, rule or
11
procedure. Neither the Custodian nor any Subcustodian shall be liable to
the Client for any loss resulting from any of the foregoing events.
(h) Force Majeure. Not withstanding any other provision contained
herein, neither the Custodian nor any Subcustodian shall be liable for
any action taken, or any failure to take any action required to be
taken, hereunder or otherwise to fulfill its obligations hereunder
(including without limitation the failure to receive or deliver
securities or the failure to receive or make any payment) in the event
and to the extent that the taking of such action or such failure arises
out of or is caused by war, insurrection, riot, civil commotion, act of
God, accident, fire, water damage, explosion, mechanical breakdown,
computer or system failure or other failure of equipment, failure or
malfunctioning of any communications media for whatever reason,
interruption (whether partial or total) of power supplies or other
utility of service, strike or other stoppage (whether partial or total)
of labor, any law, decree, regulation or order of any government or
governmental body (including any court or tribunal), or any other cause
(whether similar or dissimilar to any of the foregoing) whatsoever
beyond its reasonable control.
(i) Client's Reporting Obligations. The Client shall be solely
responsible for compliance with any notification, license or other
requirement of any jurisdiction relating to or affecting the Client's
beneficial ownership of the Securities, and neither the Custodian nor
any Subcustodian assumes liability for noncompliance with such
requirements.
(j) No Investment Advice. Neither the Custodian nor any Subcustodian or
BONY Affiliate is under any duty to provide the Client with investment
advice or to supervise its investments.
(k) Fraudulent Securities. Neither the Custodian nor any Subcustodian
shall have any liability for losses incurred by the Client or any other
person as a result of the receipt or acceptance of fraudulent, forged or
invalid Securities that Custodian or Subcustodian believes in good faith
to be proper and valid Securities (or Securities which are otherwise not
freely transferable or deliverable without encumbrance in any relevant
market).
12. Use of BONY Affiliates
(a) Executing Orders. The Custodian shall, in its sole discretion and if
permitted by applicable law, accept orders from the Client for the
purchase or sale of Securities and either execute such orders itself or
by means of BONY Affiliates or brokers or other financial organizations
selected by it using reasonable care, subject to the fees and
commissions in effect from time to time. In executing any such orders,
Custodian shall use reasonable care to obtain a reasonable price in
executing such orders. The Custodian shall not be responsible for any
act or omission, or for the solvency, of any broker or other financial
organization so selected to effect any transaction for the account of
the Client. When instructed to buy or sell Securities for which the
Custodian or a BONY Affiliate acts as a dealer, the Custodian may buy or
sell such Securities from or to either itself, as principal, or such
BONY Affiliate.
(b) Disclosure to BONY Affiliates. Notwithstanding the provisions of
Section 25 hereof, the Custodian may disclose to any BONY Affiliate
details with respect to the Securities and the
12
transactions effected hereunder. Such disclosure shall be for the
purpose of identifying banking, securities and financial services that
BONY Affiliates may be able to provide to the Client.
(c) Sub-Contracting. The Client hereby agrees that the Custodian may
arrange with any BONY Affiliate to perform on behalf of the Custodian
any act required to be performed by the Custodian hereunder.
13. Fees
The Client agrees to pay the Custodian as compensation for the services
provided hereunder a fee computed at rates set forth in Appendix N to
the Service Level Description or as otherwise agreed upon from time to
time in writing by the Custodian and the Client, as well as all
assessments, charges and expenses (including, without limitation,
reasonable legal expenses and attorney's fees) reasonably incurred by
the Custodian in connection with this Agreement.
14. Liens
The Client agrees that the Custodian will not have or claim any lien or
right of retention over the Securities, or any right to sell any of
those Securities, except in relation to any unpaid sum due to the
Custodian for or in connection with services rendered under this
Agreement.
15. Indemnification by the Client
The Client agrees to indemnify the Custodian and each Subcustodian and
to hold the Custodian and each such Subcustodian harmless from any loss
or liability (including, without limitation, the reasonable fees and
disbursements of counsel and other legal advisors) incurred by the
Custodian or such Subcustodian in rendering services hereunder or in
connection with any breach of the terms of this Agreement by the Client,
except such loss or liability which results from the Custodian's or such
Subcustodian's failure to exercise the standard of care required by
Section 10(a) hereof.
16. Termination
This Agreement may be terminated by the Custodian or the Client
following receipt by the other party of not less than 60 days prior
written notice thereof; provided that such termination may be immediate
if the other party shall be in breach of its obligations hereunder or
shall become the subject of bankruptcy, insolvency, reorganization,
receivership or other similar proceedings. If notice of termination is
given by the Custodian, then the Client shall, within 60 days following
receipt of such notice, specify in an Authorized Instruction the names
of the persons to whom all Securities and Cash shall be delivered or
paid. In such case, the Custodian shall, subject to the payment of
amounts owed to it pursuant to Sections 6(b) and 13 hereof, deliver such
Securities and Cash, and instruct each Subcustodian to deliver any
Securities or Cash held by such Subcustodian, to the persons so
specified. If within 60 days following the receipt of a notice of
termination by the Custodian, the Custodian does not receive from the
Client the names of the persons to whom such Securities and Cash shall
be delivered, the Custodian, at its election, may deliver such
Securities and Cash, and instruct each Subcustodian holding any
Securities or Cash to deliver such Securities and Cash, to a bank or a
trust company doing business in the state or
13
country where such Securities and Cash were held. Securities or Cash so
delivered shall be held and disposed of pursuant to the provisions of
this Agreement or an Authorized Instruction or may be continued to be
held until the names of such persons are delivered to the Custodian. If
notice of termination is given by the Client, the Custodian shall,
subject to the payment of all amounts owed to it pursuant to Sections
6(b) and 13 hereof, deliver such Securities and Cash, and instruct each
Subcustodian holding any Securities or Cash to deliver such Securities
or Cash, to the persons specified in an Authorized Instruction. The
indemnity provisions of this Agreement and the provisions limiting the
liabilities of the Custodian and Subcustodians shall survive the
termination of this Agreement.
17. Notices
Except as otherwise specified herein, any notice or other communication
to the Custodian or Client is to be addressed to the respective party as
set forth in Appendix B hereto, or in such other manner as may be
specified by the one party to the other in writing from time to time.
Unless otherwise specified herein, notices shall be effective when
received. If any Authorized Instruction is given to the Custodian
orally, then the Custodian's record of such instruction shall constitute
prima facie evidence of the contents of such instruction,
notwithstanding any conflicting written confirmation or record of such
instruction provided by the Client.
18. Amendments and Waivers
Any provision of this Agreement (including the Appendices hereto) may be
amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Client and the Custodian; provided,
however, that subject always to the terms of Section 10(a)(i), above,
(i) the Custodian may from time to time delete the name of any
Subcustodian from Appendix A1 or Securities Depository, book-entry
system or clearing system from Appendix A2, with notice pursuant to
Section 10(a)(i) but without the prior consent by the Client, and (ii)
the Custodian may from time to time add the name of any bank to Appendix
A1 or the name of any Securities Depository, book-entry system or
clearing system to Appendix A2, and shall notify the Client promptly by
electronic communication or facsimile or telex and by first class mail
of such addition.
19. Claims
Any claim arising out of or related to this Agreement must be brought no
later than three years after the later of the time at which such claim
has accrued or the time at which the party bringing the claim becomes
aware of such claim.
20. Successors and Assigns; Governing Law; Jurisdiction
This Agreement shall bind the successors and assigns of the Custodian
and the Client. Except as otherwise provided by the terms of this
Agreement, neither the Custodian nor the Client may assign any of its
rights or obligations under this Agreement without the prior written
consent of the other party. This Agreement shall be governed by and
construed in accordance with the law of the State of New York. The
Client hereby submits to the non-exclusive jurisdiction of any
14
federal or state court in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement, or the
transactions contemplated hereby. The Client hereby irrevocably waives,
to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum. The Client and the Custodian each hereby irrevocably waives any
and all rights to trial by jury in any legal proceeding arising out of
or relating to this Agreement.
21. Counterparts
This Agreement may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
22. Headings
The section headings used herein are for information only and shall not
affect the interpretation of any provision of this Agreement.
23. Evidence
The Custodian's books and records (whether on paper, microfilm,
microfiche, by electronic or magnetic recording, or any other
mechanically reproducible form or otherwise) shall be deemed to
constitute, in the absence of manifest error, sufficient evidence of the
facts stated therein and of any obligations of the Client to the
Custodian.
24. Reserved
25. Confidentiality
The parties hereto agree not to disclose to any other party and to keep
confidential the terms and conditions of this Agreement, any amendment
hereof, and any Exhibit, Attachment or Appendix hereto, including but
not limited to service level profiles, specifications or communication
interfaces or products, or any user manual. The Client agrees to cause
all Authorized Persons to comply with the provisions of this Section 25.
Notwithstanding the foregoing, the Client may disclose such terms and
conditions of this Agreement relating to custody services provided by
the Custodian to the Client with respect to the assets of such customer,
subject to a written agreement of non-disclosure by an actual customer
or a written notice of confidentiality from the Client to a prospective
customer. In the event that either the Client (including any Authorized
Person) or the Custodian breaches this Section 25 with respect to any
aspect of communication interfaces or products, or any user manual, the
other party shall be entitled to temporary and permanent injunctive
relief against the other party (or such Authorized Person, as the case
may be) without the necessity of proving actual damages. Notwithstanding
any other provision herein, the Custodian may disclose the Client's
name, address and securities position and other information to such
persons and to such an extent as required by law, the rules of any stock
exchange or regulatory or self-regulatory organization, or any order or
decree of any court or administrative body that is binding on the
Custodian or any Subcustodian or Securities
15
Depository, or the terms of the organizational documents of the issuer
of any Security or the term of any Security itself.
26. License
The Custodian hereby grants to the Client a personal, non-transferable
and nonexclusive license to use, for its internal purposes only, the
respective number of copies of any hardware, firmware, microcode and
software set forth in Appendix D or hereafter identified by the
Custodian in writing as communication products (the "Communication
Products"), for the respective terms set forth in Appendix D and at the
respective locations set forth in Appendix D, solely in connection with
transmitting and receiving electronic communications to and from the
Custodian in connection with this Agreement. The Client hereby
acknowledges and agrees that this license is subject to the terms and
conditions set forth in Appendix E.
27. Severability
In the event any of the terms or provisions of this Agreement shall be
held to be unenforceable, the remaining terms and provisions shall be
unimpaired and the unenforceable term or provision shall be replaced by
such enforceable term or provision as comes closest to the intention
underlying the unenforceable term or provision.
28. Integration Clause
This Agreement and the Service Level Description constitute the entire
Agreement between the parties hereto and supersedes any and all prior
agreements and understandings, written or oral, relating to the matter
hereof.
---------------------------------------------
In Witness Whereof, the parties have caused this Agreement to be duly
executed by their respective authorized representatives as of the day
and year first above written.
The Bank of New York Nations Annuity Trust
By:__________________________________________________ By:__________________________________________________
Title:_______________________________________________ Title::______________________________________________
16
Appendix A1
Global Custody Network
Country/Market Subcustodian(s) Country/Market Subcustodian(s)
Argentina* BankBoston, N.A. Greece National Bank of Greece SA
Australia* Commonwealth Bank of Hong Kong* The Hongkong and Shanghai Banking
Australia/National Australia Bank Corporation Limited
Limited
Austria* Creditanstalt-Bankverein Hungary Citibank Budapest Rt.
Bahrain The British Bank of the Middle East Iceland Landsbanki Islands
Bangladesh Standard Chartered Bank India The Hongkong and Shanghai Banking
Corporation Limited/Deutsche Bank AG
Belgium* Banque Bruxelles Xxxxxxx Indonesia The Hongkong and Shanghai Banking
Corporation Limited
Bermuda Bank of Bermuda Limited Ireland* Allied Irish Banks, plc
Botswana Stanbick Bank Botswana Limited Israel Bank Leumi LE - Israel B.M.
Brazil* BankBoston, N.A. Italy* Banca Commerciale Italiana/Banque
Paribas S.A.
Bulgaria ING Bank-Xxxxx Xxxxx Coast Societe Generale de Banque en Cote
d'Ivoire
Canada* Royal Bank of Canada Japan* The Bank of Tokyo-Mitsubishi Limited/
The Fuji Bank, Limited
Chile* BankBoston, N.A./Banco de Chile Jordan The British Bank of the Middle East
China* Standard Chartered Bank Kenya Stanbic Bank Kenya Limited
Colombia Cititrust Colombia S.A. Latvia Societe Generale Riga
Costa Rica Banco BCT Lebanon The British Bank of the Middle East
Croatia Privredna Banka Zagreb d.d. Lithuania Vilniaus Bankas
Cyprus Bank of Cyprus Luxembourg* Banque Internationale a Luxembourg
Czech Republic Ceskoslovenska Obchodni Banka A.S. Malaysia* Hongkong Bank Malaysia Berhad
Denmark* Den Danske Bank Mauritius The Hongkong and Shanghai Banking
Corporation Limited
EASDAQ Banque Bruxelles Xxxxxxx Mexico Banco Nacional de Mexico/Citibank
Mexico, S.A.
Ecuador Citibank, N.A. Morocco Banque Commerciale du Maroc
Egypt Citibank, N.A. Namibia Stanbic Bank Namibia Limited
Estonia Hansabank Limited Netherlands* Mees Pierson/KAS Associate NV/Bank
Labouchere NV
Euromarket Cedel Bank New Zealand* Australia and New Zealand Banking
Group Limited
Euromarket Euroclear Nigeria Stanbic Merchant Bank Nigeria Limited
Finland* Xxxxxx Bank Ltd. Norway* Den norske Bank ASA
France* Banque Paribas S.A./Credit Oman The British Bank of the Middle East
Commercial de France
Germany* Dresdner Bank AG Pakistan Standard Chartered Bank
Ghana Merchant Bank (Ghana) Limited Peru Citibank, N.A.
* Indemnified Subcustodians
17
Philippines The Hongkong and Shanghai Banking Sweden Skandinaviska Enskilda Banken
Corporation Limited
Poland Bank Handlowy W. Warszawie S.A. Switzerland Union Bank of Switzerland/Bank Leu Ltd.
Portugal* Banco Comercial Portugues/Banco Taiwan The Hongkong and Shanghai Banking
Espirito Santo Corporation Limited
Romania ING Bank Bucharest Branch Thailand Siarn Commercial Bank Public Company
Limited/
Bangkok Bank Public Company Limited
Russia Vneshtorgbank (Min Fin Bonds only)/ Tunisia Banque Internationale Arabe de Tuniste
Credit Suisse First Boston Limited/
Unexim Bank
Singapore* United Overseas Bank Limited/The Turkey Osmanli Bankasi A.S. (Ottoman Bank)
Development Bank of Singapore
Limited
Slovakia Ceskoslovenska Obchodna Banka, a.s. Ukraine Bank Ukraina
Slovenia Banka Creditsanstalt D.D., Ljubljana United Kingdom The Bank of New York, N.A./First
Chicago Clearing Center
South Africa The Standard Bank of South Africa United States The Bank of New York, N.A.
Limited
South Korea* Standard Chartered Bank Uruguay BankBoston, N.A.
Spain Banco Bilbao Vizcaya Venezuela Citibank, N.A.
Sri Lanka Standard Chartered Bank Zambia Stanbic Bank Zambia Limited
Swaziland Stanbic Bank Swaziland Limited Zimbabwe Stanbic Bank Zimbabwe Limited
18
Appendix A2
Global Custody Network & Depositories
Country Depository1
-------------- ----------------------------------------------------------------
Argentina Caja de Valores
CRYL
Australia Austraclear Limited
Reserve Bank Information and
Transfer System (RITS)
Austria Oesterreichische Kontrollbank AG (OeKB)
Bahrain Clearing and Settlement Department (CSU) of the Bahrain Stock
Exchange (BSE)
Bahrain Monetary Authority
Bangladesh Dhaka Stock Exchange Clearinghouse
Belgium Caisse Interprofessionelle de Depot et Virements de Titres (CIK)
Banque Nationale de Belgique (Belgian Xxxxxxxx Xxxx, XXX)
Xxxxxxx Xxxx
Xxxxxxx Not Available
Botswana None
Brazil Bolsa de Valores de Sao Paulo
(BOVESPA) Custody Service
Camara De Liquidacao e Custodia S.A., (CLC)
Central de Custodian e Liquidacao Financeira de Titulos (CETIP)
Sistema Especial de Liquidacao e Custodia (SELIC)
1 In addition to the central bank, if applicable.
19
Country Depository1
-------------- ----------------------------------------------------------------
Bulgaria Bulgarian National Bank
The Central Depository (CDAD)
Canada Bank of Canada
Canadian Depository for Securities (CDS)
Chile Deposito Central de Valores
(DECEVAL) Scheduled 12/96
China Shanghai Securities Central Clearing and Registration Corporation
Shenzhen Securities Clearing Company Limited
Colombia Deposito Central de Valores (DCV)
Deposito Centralizado de Valores (Deceval)
Croatia Sredisnja Depozitama Agencija
Ministry of Finance
National Bank of Croatia
Cyprus None
Czech Czech National Bank (CNB)
Republic Central Securities Depository (SCP)
Komercni Banka
Denmark Vaerdipapierkentralen (VP)
Ecuador Deposito Central de Valores (DECEVALE) (scheduled to be
operative in 1998)
Egypt Misr. for Clearing, Settlement and Depository (MCSD)
Estonia Estonia Central Securities Depository (ECSDL)
Finland Central Securities Depository (APK)
France SICOVAM (Societe Interprofessionnelle pour la Compensation des
Valeurs Mobilieres)
Banque de France
Germany Deutsche Borse Clearing AG (formerly known as Deutscher
Kassenverein or DKV).
1 In addition to the central bank, if applicable.
20
Country Depository1
-------------- ----------------------------------------------------------------
Ghana Not available
Greece Apothetirion Titlon, AE (Central Securities Depository)
Bank of Greece
Hong Kong Hong Kong Securities Clearing Company Limited
Central Moneymarkets Unit
Hungary Keler
Iceland None
India Each of the 23 stock exchanges in India has a clearinghouse,
such as the BSE Clearinghouse for the Bombay Stock Exchange
and the National Securities Clearing Corporation Ltd. (NSCCL)
for the National Stock Exchange
National Securities Depository Ltd. (NSDL)
Indonesia None
Ireland CREST
CBISSO, the Central Bank of Ireland Securities Settlement Office
Xxxxxx No Central Depository, Only 4 Centralizing banks
Italy Xxxxx Xxxxxx
Banca d'Italia (Bank of Italy)
Ivory Coast None
Japan Japan Securities Clearing Corporation
Japan Securities Depository Center (JASDEC)
Bank of Japan
Xxxxxx Xxxxxxx Xxxx xx Xxxxxx
Xxxxx Xxxx
Xxxxx (South) Korea Securities Depository Corporation (KSD)
1 In addition to the central bank, if applicable.
21
Country Depository1
-------------- ----------------------------------------------------------------
Latvia Latvian Central Depository (LCD)
Lebanon Midclear
Bank of Lebanon
Lithuania Central Securities Depository of Lithuania
Luxembourg None
Malaysia Malaysian Central Depository Sdn Bhd
Bank Negara
Mauritius Mauritius Stock Exchange Ltd. (SEM)
Mexico Banco de Mexico
Institutional Deposito de Valores, S.A. Ltd. (Indeval)
Morocco Maroclear (including the Centrale des Titres Scripturaus).
The Bank Al Maghrib
Namibia None
Netherlands Nederlands Centraal Instituut voor Giraal Effectenverkeer
(NECIGEF) De Nederlandsche Bank NV
New Zealand New Zealand Central Securities Depository (formerly Austraclear)
Nigeria Central Secs. Clearing System Ltd.
Norway Verdipapirsentralen or VPS (Norwegian Registry of Securities)
Oman None
Pakistan Each of the three stock exchanges has its own clearinghouse:
Karachi, Lahore and Islamabad Stock Exchange (Guarantee) Ltd.
Peru Caja de Valores y Liquidaciones ICLVS.A. (CAVALI)
Phillippines Philippine Central Depository (PCD)
1 In addition to the central bank, if applicable.
22
Country Depository1
-------------- ----------------------------------------------------------------
Poland National Depository for Securities (NDS)
National Bank of Poland (NBP)
Portugal Central De Valores Mobiliarios (CVM)
Romania National Bank of Romania
Bucharest Stock Exchange (BSE)
The Central Depository (SNCDD)
Russia Moscow Interbank Currency Exchange (MICEX)
Unexim Bank
Singapore The Central Depository (Pte.) Ltd. (CDP)
Slovakia Stredisko cennych papierov (SCP)
National Bank of Slovakia (NBS)
Slovenia Central Securities Clearing Corporation of Slovenia (KDD)
South Africa Central Depository Ltd. (CD)
Spain Servicio de Liquidacion y compensacion de
Valores (SCL)
Bank of Spain
ESPACLEAR
Sri Lanka Central Depository System (CDS)
Swaziland None
Sweden Vardipapircentralen (VPC)
Switzerland Schweizerische Effekten-Giro AG (SEGA)
Intersettle
Taiwan Taiwan Securities Central Depository Co. Ltd.
Thailand The Stock Exchange of Thailand (SET)
1 In addition to the central bank, if applicable.
23
Country Depository1
-------------- ----------------------------------------------------------------
Tunisia Societe Tunisienne Interprofessionelle pour la Compensation
et les
Depos des Valeurs Mobilieres (STICODEVAM)
Central Bank of Tunisia
Turkey Takasbank
Central Bank of Turkey (CBT)
Ukraine National Bank of Ukraine
United CGO (Central Gilts Office)
Kingdom CMO (Central Money Markets Office)
CREST
United States Depository Trust Company
Participants Trust Company
Federal Reserve Bank
Uruguay None
Venezuela Caja de Valores (CVV Venezolana)
Zambia Zambian Central Depository, part of the
Lusaka Stock Exchange
Zimbabwe None
1 In addition to the central bank, if applicable.
00
Xxxxxxxx X
Notices to the Custodian
The Bank of New York, Brussels Office
00 xxxxxx xxx Xxxx
Xxxxxxxx 0000, Xxxxxxx
Attention: Securities Trust and Information Services, Global Custody
Facsimile No. 000-000-0000
Telephone No. 000-000-0000
Notices to the Client
[To be provided by Client]
25
Appendix C
Persons Authorized by the Client to Receive Security Procedure Materials
Authorized individuals from the following organizations:
Nations Bank, N.A.
NationsBanc Advisors, Inc.
TradeStreet Investment Associates, Inc.
Gartmore Global Partners
First Data Investor Services Group, Inc.
26
Appendix D
Communication Products
----------------------------- -------------------------------------- ----------------- ==============
Communication Product Term Number of Copies Location
(Check One) (S)
----------------------------- -------------------------------------- ----------------- ==============
[ ] As long as this Agreement
remains in effect
[ ] One year with automatic renewal
for successive one year terms
thereafter
[ ] Fixed term until ________
----------------------------- -------------------------------------- ----------------- --------------
[ ] As long as this Agreement
remains in effect
[ ] One year with automatic renewal
for successive one year terms
thereafter
[ ] Fixed term until ________
----------------------------- -------------------------------------- ----------------- --------------
[ ] As long as this Agreement
remains in effect
[ ] One year with automatic renewal
for successive one year terms
thereafter
[ ] Fixed term until ________
----------------------------- -------------------------------------- ----------------- --------------
[ ] As long as this Agreement
remains in effect
[ ] One year with automatic renewal
for successive one year terms
thereafter
? Fixed term until ________
----------------------------- -------------------------------------- ----------------- --------------
00
Xxxxxxxx X
Communication Products - Terms and Conditions
1. Misuse; Confidentiality; Copies
The Client shall not transfer, sublicense, rent, lease, convey, translate,
convert to another programming language, decompile, disassemble, modify or
change any Communication Product for any purpose. The Client shall not use any
Communication Product in a manner which would violate this license or infringe
the proprietary rights of the Custodian or others or violate the laws, tariffs
or regulations of any country. The Client agrees not to disclose to any party,
except for Authorized Persons from the organizations listed in Appendix C, and
to keep confidential all of the Communication Products and all information
contained in or related to the Communication Products and related documentation.
The Client may make only one copy of each licensed software Communication
Product for backup purposes in support of its authorized use of the software.
The Client shall include any applicable copyright notice on any such software
backup. The Client is permitted to use each licensed copy of any Communication
Product on only one computer or local area network at a time.
2. Compatible Products
The Client shall be responsible for obtaining and maintaining hardware, software
and other equipment and products that are compatible with the Communication
Products, as compatibility is defined by the Custodian from time to time. The
Custodian shall give the Client reasonable advance notice of any changes in such
compatibility requirements.
3. Documentation
If available, the Custodian shall give the Client one copy of a user manual and
related documentation (the "Documentation") for each licensed Communication
Product. The Documentation is intended to be used for training and informational
purposes. The Documentation describes Security Procedures that the Client must
comply with in using the Communication Products. The Client shall immediately
notify the Custodian in writing if it believes any Security Procedure has been
compromised or if any Communication Product fails to perform as described in the
Documentation.
4. Installation
At its option, the Custodian shall either install the Communication Products at
the locations specified by the Client or shall furnish the Client with
installation instructions. From time to time, at its option, the Custodian shall
either install new releases of the Communication Products or furnish the Client
with installation instructions and direct the Client to install such new
releases by itself. The Client agrees to allow the Custodian to install such new
releases or to install such new releases by itself if directed to do so by the
Custodian.
5. Returns, Repairs and Replacements
Upon the termination of this License with respect to any Communication Product,
the Client agrees to return all copies of such Communication Product and related
documentation to the Custodian. The Client agrees to pay any shipping charges
incurred in connection with the return
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of any Communication Product to the Custodian for replacement, update or upon
termination of this License with respect to such Communication Product.
Communication Products that are lost, damaged or otherwise rendered inoperable
due to the Client's negligent, reckless or intentional misuse, or due to reasons
beyond the Custodian's control, shall be repaired or replaced at the Client's
expense. Communication Product repairs shall only be performed by the Custodian
or a party authorized by the Custodian to perform such repairs.
6. Fees; Taxes
The Client agrees to pay the Custodian license fees and such other fees as the
parties hereto may agree upon in writing from time to time in connection with
obtaining the Communication Products. The Client agrees to reimburse the
Custodian for, or shall pay directly to the relevant taxing authorities, any
sales, use, value-added, excise or other taxes, other than taxes based on the
Custodian's net income, incurred by the Custodian or which may in the future be
incurred by the Custodian as a result of this License or on or measured by the
prices and other charges of the Communication Products furnished for the
Client's use, however designated, levied or based, whenever the Custodian has
paid or shall be liable to pay or collect any such tax from the Client pursuant
to applicable law, as interpreted by the departmental authorities of the taxing
unit.
7. Warranty
The Custodian warrants that, for a period of 30 days after delivery of a
Communication Product to the Client such Communication Product will perform
substantially in accordance with the then current specifications therefor as set
forth in the Documentation. If a Communication Product fails to meet the
foregoing warranty and the Client gives the Custodian written notice thereof
during the applicable warranty period, the Custodian's sole obligation shall be
to provide technical services to attempt to correct the failure, provided that
(i) the Client gives the Custodian detailed information regarding such failure
and the Custodian is able to duplicate same and (ii) the Communication Product
has not been used in an unauthorized manner or otherwise misused or abused. The
Client acknowledges that the Communication Products are complex, may not be
error free, and that all errors, if any, may not be correctable or avoidable.
Except and to the extent expressly provided above, and in lieu of all other
warranties, the Communication Products are provided above, "as is", all
warranties and representations of any kind with regard to the Communication
Products are hereby disclaimed, including any implied warranties of
merchantability or fitness for a particular purpose.
8. Infringement
The Custodian shall defend or settle, at its own expense, any cause of action or
proceeding brought against the Client which is based on a claim that the use of
a Communication Product infringes any patent, copyright, trade secret or other
proprietary right. The Custodian shall indemnify and hold the Client harmless
against any final judgment that may be awarded by a court of competent
jurisdiction against the Client as a result of the foregoing. The Custodian's
obligations hereunder are conditioned upon its receiving from the Client (i)
prompt written notice of each such claim, (ii) reasonable cooperation and
information in Client's possession and (iii) the right to control and direct the
investigation, defense and settlement of each such claim. If a claim is made
that a Communication Product infringes any patent, copyright, trade secret or
other proprietary right, the Custodian may, in the Custodian's sole discretion,
either procure for the
1 In addition to the central bank, if applicable.
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Client the right to continue using such Communication Product, modify it to make
its use noninfringing, or replace it with a noninfringing product; provided that
if none of the foregoing is reasonably available to the Custodian, the Custodian
may terminate the license granted herein and require the Client to return all
copies of the relevant Communication Product. Notwithstanding the foregoing, the
Custodian shall not be liable to the Client pursuant to this Section if a claim
is based on (i) a combination of a Communication Product with data or other
software or devices not supplied by the Custodian, (ii) modifications to a
Communication Product not made by the Custodian or (iii) use of a Communication
Product in an unauthorized manner.
Related Services
These terms and conditions and the Documentation are intended to define the
rights and obligations of the Client with respect to Communication Products used
by the Client in connection with all services (e.g., custody, Portfolios
transfers, foreign exchange etc.) offered by BONY and its affiliates to the
Client. The provisions of this Agreement and any documents relating to other
services offered by BONY and its affiliates may supplement these terms and
conditions but in the event of any inconsistency between this Agreement or such
other documents and these terms and conditions, these terms and conditions shall
prevail.
Intraday Reports
The Client acknowledges that intraday reports received by the Client by means of
any Communication Product may contain information that is subject to correction,
and that corrections of such information will routinely occur without notice to
the Client. The Client understands that intraday reports are provided for
informational purposes only and are not to be relied upon for purposes of final
reconciliations or otherwise. Neither BONY nor any affiliate or subsidiary of
BONY that provides data with respect to intraday reports makes any
representation or warranty that such reports are accurate or complete.
1 In addition to the central bank, if applicable.
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Appendix F
The Global Custody Agreement applies to the following Portfolios:
Nations International Value Portfolio
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