Securities, Trust & Information Services
US Domestic Custody Agreement
US Domestic Custody Agreement
Agreement dated as of ____________ between Xxxxxx Guaranty Trust Company of
New York (the "Custodian"), and Xxxxx Xxxxxx ___________________________ (the
"Client").
Whereas, the Client desires to arrange for the custody of certain of its
assets by the Custodian;
Now, Therefore, in consideration of the mutual agreements contained herein,
the Custodian and the Client agree as follows:
1. Definitions. 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.
"Authorized Persons" means those persons who have been designated by or duly
authorized by the Client pursuant to all 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" has the meaning set forth in Section 5.
"Xxxxxx Affiliate" means any office or branch of Xxxxxx Guaranty Trust Company
of New York ("Xxxxxx") other than the Custodian and any other entity that
directly, or indirectly through one or more intermediaries, controls Xxxxxx or
any other entity that is controlled by or is under common control with Xxxxxx.
"Securities Account" has the meaning set forth in Section 3.
"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.
"Securities Depository" means any securities depository or clearing system set
forth on Appendix A hereto, as amended from time to time in accordance with
Section 17 hereof.
"Security" means any share, stock, bond, debenture, note, certificate of
indebtedness, warrant, option or other security (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 the Client directly, or indirectly through a Securities
Depository, by the Custodian pursuant to this Agreement.
2. Representations, Warranties and Covenants of the Client. The Client
represents and warrants, as of the date of this Agreement and each day
thereafter until this Agreement is terminated, the following:
(a) 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
appropriate action under its constitutive documents; (iii) require no action
by or in respect of, or filing with, any governmental body, agency or
official; and (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the organic documents of the
Client or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Client.
(b) The Custodian shall be entitled to deal with all Securities free of any
proprietary or equitable interest of any person or entity (other than
interests of the Client, the Custodian and Security Depositories).
(c) The Client agrees that it will not incur any credit, advance or overdraft
with respect to the Cash Account to purchase or carry any margin stock, as
defined in Regulation U of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Chapter II, as amended.
3. Securities Account. The Client hereby establishes with the Custodian a
securities account (the "Securities Account") which shall contain, in the
manner and on the terms specified herein, 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
Securities Depositories. Securities held by any Securities Depository shall
be held subject to the Custodian's agreement with the Securities Depository
and to the rules and terms and conditions of the Securities Depository.
(b) Fungibility. The Client agrees that any issue held by the Custodian
directly, or indirectly through any Securities Depository, may be treated as
fungible with all other securities of the same issue pursuant to the
provisions of the Uniform Commercial Code of the State of New York (or other
applicable laws). The Client shall have no right to any specific securities
but instead shall 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 any issue that is equivalent to the
amount of such securities credited to the 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 the securities shall be limited to effecting such transfer,
delivery or repossession.
(c) Identification of Client's Interests; Nominees. The Custodian shall cause
the Client's interest in any Securities held directly or indirectly by the
Custodian to be evidenced by a credit to the Securities Account on the books
of the Custodian. The Custodian shall require each Securities Depository to
identify Securities held by the Securities Depository as being held for the
account of the Custodian for its customers to the extent permitted by the
rules and procedures of the Securities Depository. The Custodian shall
segregate on its books and records any securities which are held by it for the
Custodian's own account from those securities (including the Securities) held
by it for the accounts of others. Securities may be registered in the name of
the Custodian's nominee or, as to any Securities in the possession of a
Securities Depository, in the name of the Securities Depository's nominee.
The Client agrees to hold any nominee harmless from any liability as a holder
of record of any Securities.
(d) Liens of Securities Depositories. The Custodian shall authorize or permit
the holding of any Securities by a Securities Depository only as long as (i)
the Securities are not subject to any right, charge, security interest, lien
or claim of any kind in favor of the Securities Depository or its creditors,
including a receiver or trustee in bankruptcy or similar authority, except for
a claim of payment for the safe custody or administration of the Securities
and (ii) beneficial ownership of the Securities is freely transferable without
the payment of money or value other than for safe custody or administration.
5. Cash Account. The Client hereby establishes and shall maintain with the
Custodian a deposit account to be used in connection with transactions
relating to Securities (the "Cash Account"). 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.
6. Instructions by the Client.
(a) Generally. The Client shall give an Authorized Instruction with respect
to Cash and Securities only to the Custodian. The Client agrees to be bound
by all Authorized Instructions, whether or not the 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. The Custodian shall make payments only to the extent that
sufficient Cash is available in the Cash Account or otherwise available
therefor and only (i) as specified in an Authorized Instruction, (ii) as
permitted by Section 13 hereof or (iii) upon the termination of this Agreement
as set forth in Section 15 hereof. The Custodian may make payments from time
to time on behalf of the Client when sufficient Cash is not available in the
Cash Account, but the Custodian shall have no obligation to make such
payments. Any credit, advance or overdraft shall be paid by the close of each
business day or otherwise upon the Custodian's demand.
(c) Delivery of Securities. Any Securities held by a Securities Depository
shall be subject only to the instructions of the Custodian. Securities shall
be transferred, exchanged or delivered by the Custodian to the extent
sufficient Securities are actually in the Securities Account and available for
delivery and only:
(i) as specified by an Authorized Instruction;
(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 Section 13 hereof; or
(v) upon the termination of this Agreement as set forth in Section 15 hereof.
7. Corporate Actions. Until the Custodian receives an Authorized Instruction
to the contrary, the Custodian shall:
(i) collect dividends, interest and other payments made and stock dividends,
rights and similar distributions made or issued with respect to Securities, in
each case net of any applicable taxes or other charges withheld by the payor
of such payment or distribution;
(ii) promptly after the Custodian becomes aware thereof, notify the Client of
any rights offering by any issuer of Securities held for the Securities
Account and, to the extent permitted by law applicable to the Custodian, sell
the rights in the principal market for such rights and deposit the proceeds of
the sale in the Cash Account if the Client does not instruct the Custodian as
to whether or not to purchase securities under the rights offering by the
deadline for such purchase;
(iii) promptly after receipt thereof, forward to the Client those
communications relating to any Securities which call for voting or the
exercise of rights or other specific action (including materials relating to
legal proceedings intended to be transmitted to holders of the Securities);
(iv) present for payment maturing Securities and those called for redemption;
(v) 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;
(vi) accept and open all mail directed to the Client in care of the Custodian;
(vii) disclose the Client's name, address and Securities position to the
issuers of Securities when requested to do so by them; and
(viii) dispose of fractional interests received by the Custodian as a result
of stock dividends by selling any fractional interest received in accordance
with local law and practice.
With respect to any corporate actions 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 the Custodian shall not be liable for the consequences
of any such action. If the Custodian holds Securities belonging to the Client
as part of a fungible mass with securities of its other clients, the Custodian
shall 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 a
selection. If any Securities held by a Securities Depository become subject
to a partial redemption, partial payment or other action, the Client agrees
that any manner used by the Securities Depository shall be acceptable to
select the securities to participate in a partial redemption, partial payment
or other action.
8. Reporting.
(a) Statements. The Custodian shall mail, or cause to be mailed, or transmit
electronically to the Client (or, with prior consent of the Client, make
available electronically) monthly statements of the Securities Account and
Cash Account. The statements shall list all Securities and specify the amount
of Cash. The Client agrees that each 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 theretofore notified the Custodian in writing of any inaccuracy in the
statement.
(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. The Custodian has no obligation to
maintain any records for a period of more than 10 years.
(c) Other Information. From time to time, the Custodian may provide
additional reporting information to the Client on terms and conditions agreed
upon by the parties hereto in writing. The additional information may include
data obtained from third parties, such as pricing valuation information
relating to Securities. The Client agrees that it shall not redistribute or
resell data obtained from third parties, except that it may provide such data
to the beneficial owners of Securities as recorded on the Client's books and
records.
9. Responsibilities; Indemnification by the Custodian.
(a) Standard of Care. The Custodian shall use reasonable care in the
performance of its duties hereunder and shall exercise the same degree of care
with respect to the Securities as it would with respect to its own securities
and property. The Custodian's responsibility with respect to any Securities
held by any Securities Depository is limited to the failure on the part of the
Custodian to exercise reasonable care in the selection or retention of the
Securities Depository; it being understood that the Client has approved
Securities Depositories included on Appendix A.
(b) Insurance. The Custodian shall maintain insurance coverage with respect
to the Securities covering such risks and in such amounts as the Custodian
maintains with respect to securities which the Custodian holds for its own
account and for the account of other customers.
(c) Indemnification by the Custodian. 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 10 hereof) incurred by the Client by reason of
the negligence (whether through action or inaction) or willful misconduct of
the Custodian (or by an officer, other employee or agent of the Custodian) in
connection with the services provided pursuant to this Agreement.
10. 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 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
Securities Depository be liable to the Client or any other person for
indirect, special or consequential damages, even if the Custodian or
Securities Depository 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 has not
received notice of such transaction directly from the issuer of the Security
or if such distribution or action was not included in the reports of a
recognized investment data service selected by the Custodian.
(d) Authorized Instruction. The Custodian shall not be liable for any action
taken in good faith upon 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
"Authorized Instructions" to deliver any Securities against payment or to pay
for the Securities against delivery, the Custodian or a Securities Depository
may make or accept payment for or delivery of the Securities in such form and
manner as may be satisfactory to it and at such time and in such manner as
shall be in accordance with the customs prevailing in the relevant market or
among securities dealers. The Client shall bear the risk that (i) the
recipient of the Securities may fail to make payment, return the Securities or
hold the Securities or the proceeds of their sale in trust for the Client, and
(ii) that the recipient of payment for the Securities may fail to deliver the
Securities (failure to include, without limitation, delivery of forged or
stolen Securities) or to return payment, in each case whether failure is total
or partial or merely a failure to perform on a timely basis. The Custodian
shall not 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 the 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) Force Majeure. Notwithstanding any other provision contained herein, the
Custodian shall not 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, or malfunction or failures caused by
computer virus, failure or malfunctioning of any communications media for
whatever reason, interruption (whether partial or total) of power supplies or
other utility or 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.
(h) Delays. Except in the case of a failure by the Custodian to exercise the
standard of care required by Section 9(a) hereof, the Custodian shall not be
liable for delays in carrying out payment instructions given by the Client.
In the event that a delay in the carrying out of a payment instruction is
caused by a failure of the Custodian, the liability of the Custodian shall not
exceed an interest equivalent for the period from the day when the payment
would have been carried out, but for the negligence of the Custodian, until
the day when it is actually carried out (excluding any portion of such period
during which the Custodian cannot carry out such instructions as a result of
any event referred to in Section 10(g)); provided if the Client shall fail to
report the delay to the Custodian within 10 days from the date when the
payment would, but for such failure of the Custodian, have been made, the
Custodian shall not be liable for an interest equivalent for more than a total
of 10 days.
(i) Client's Reporting Obligations. The Client shall be solely responsible
for compliance with any notification or other requirement of any jurisdiction
relating to or affecting the Client's beneficial ownership of the Securities,
and the Custodian assumes no liability for noncompliance with such
requirements.
(j) No Investment Advice. The Custodian is under no duty to provide the
Client with investment advice or to supervise its investments.
(k) Fraudulent Securities. The Custodian shall have no 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 (or Securities which
are otherwise not freely transferable or deliverable without encumbrance in
any relevant market).
(l) Third Party Information. The Custodian shall have no responsibility for
the accuracy of any information provided by the Custodian to the Client that
has been obtained from third parties pursuant to Sections 7 and 8(c) of this
Agreement.
11. Use of Xxxxxx Affiliates.
(a) Executing Orders. The Custodian shall, in its sole discretion and if
permitted by applicable law, accept orders from an Authorized Person for the
purchase or sale of any Securities and either execute such orders itself or by
means of Xxxxxx Affiliates or brokers or other financial organizations of its
choice, subject to the fees and commissions in effect from time to time. 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
any Securities for which the Custodian or a Xxxxxx Affiliate acts as a dealer,
the Custodian may buy or sell the Securities from or to either itself, as
principal, or a Xxxxxx Affiliate.
(b) Disclosure to Xxxxxx Affiliates. Notwithstanding the provisions of
Section 24 hereof, the Custodian may disclose to any Xxxxxx Affiliate details
with respect to the Securities and the transactions effected hereunder. Such
disclosure shall be for the purpose of identifying banking and securities
services that the Xxxxxx Affiliates may be able to provide to the Client.
(c) Sub-Contracting. The Client hereby agrees that the Custodian may arrange
with any Xxxxxx Affiliate to act as a subcustodian and/or to perform on behalf
of the Custodian any act required to be performed by the Custodian hereunder.
The Custodian shall be responsible for the performance of the Xxxxxx Affiliate
to the same extent the Custodian would have been if it directly performed or
failed to perform such acts.
12. Fees. The Client agrees to pay the Custodian as compensation for the
services provided hereunder a fee computed at rates determined by the
Custodian from time to time and communicated to the Client in advance, as well
as all assessments, charges and expenses (including, without limitation, legal
expenses and attorney's fees) incurred by the Custodian in connection with
this Agreement. The Custodian is authorized to charge the Cash Account for
such items.
13. Pledge; Right of Set-off. To the extent permitted by applicable law, the
Client hereby pledges to the Custodian as security for the payment of the
fees and other amounts referred to in Section 12 as well as any other
obligation or liability of any kind which the Client may have to the Custodian
in connection with this Agreement, all Cash from time to time in the Cash
Account and all of the Securities from time to time in the Securities Account
and hereby grants to the Custodian a lien and security interest in the Cash
and the Securities. Upon any breach by the Client of its obligations
hereunder, the Custodian shall be entitled to exercise all of the remedies
available to a secured creditor under applicable law. Further, the Client
hereby grants to the Custodian a right to debit the Cash Account for any
amount payable by the Client and/or set off the Custodian's obligations to
deliver Cash to the Client against any obligation or liability of any kind
which the Client may have to the Custodian, whether or not relating to or
arising under this Agreement.
14. Indemnification by the Client. The Client agrees to indemnify the
Custodian and to hold the Custodian harmless from any loss or liability
(including, without limitation, the reasonable fees and disbursements of
counsel and other legal advisers) incurred by the Custodian 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 failure to exercise the standard of care required by Section 9(a)
hereof.
15. 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 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, subject to the
satisfaction of all obligations owed to it pursuant to this Agreement, shall
deliver all Securities and Cash 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
the Securities and Cash shall be delivered, the Custodian, at its election,
may deliver the Securities and Cash to a bank or a trust company doing
business in the state where the 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 are delivered to the Custodian. If notice of termination is
given by the Client, the Custodian, subject to the payment of all obligations
owed to it pursuant to this Agreement, shall deliver all Securities and Cash
to the persons specified in the Authorized Instruction. The provisions of
Sections 18, 22, 24 hereof and the indemnity provisions of this Agreement and
the provisions limiting the liabilities of the Custodian shall survive the
termination of this Agreement.
16. Notices. Except as otherwise specified herein, any notice or other
communication to the Custodian is to be addressed to it at 00 Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000-0000 or to such other address as may be specified by the
Custodian to the Client in writing from time to time. Any notice or other
communication to the Client is to be addressed to the Client address specified
herein or to such other address as may be specified by the Client to the
Custodian in an Authorized Instruction 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
the instruction shall constitute prima facie evidence of the contents of the
instruction, notwithstanding any conflicting written confirmation or record of
the instruction provided by the Client.
17. 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
(i) the Custodian may from time to time delete the name of any Securities
Depository from Appendix A without notice to or consent by the Client and (ii)
the Custodian may from time to time add the name of any Securities Depository
or clearing system to Appendix A if it notifies the Client by first class mail
of such addition and does not receive in writing an objection to the addition
within 30 days after the date the notice is mailed.
18. Claims. Any claim arising out of or related to this Agreement must be
brought no later than one year after the claim has accrued.
19. 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, without regard to any conflicts of laws. The Client hereby
submits to the non-exclusive jurisdiction of any 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.
20. 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.
21. Headings. The section headings used herein are for information only and
shall not affect the interpretation of any provision of this Agreement.
22. 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.
23. Integration. This Agreement constitutes the entire agreement between the
parties hereto as it pertains to the provision of US custody services and
supersedes any and all prior agreements and understanding, oral or written,
relating to the subject matter hereof.
24. Confidentiality. Notwithstanding any other provision in this Agreement,
the Custodian may disclose the Client's name, address and securities position
and other information to any 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 Securities Depository.
25. Security Procedures. The Client acknowledges that it has been fully
informed of the protections and risks associated with the various methods of
communication for transmitting Authorized Instructions to the Custodian. The
Custodian has recommended that the Client transmit Authorized Instructions to
the Custodian using one or more specified methods of communication and has
recommended a type of Security Procedure for each such method. The Client
hereby agrees that the Security Procedure actually agreed between the Client
and the Custodian shall be deemed commercially reasonable even if such
Security Procedure offers less protection than the Security Procedure
recommended by the Custodian. If the Client elects to transmit Authorized
Instructions to the Custodian by a method of communication for which no
Security Procedure has been agreed, the Client agrees to be bound by any such
Authorized Instruction that the Custodian believes in good faith to have been
given by an Authorized Person. The Client shall (i) not disclose, or permit
any Authorized Person to disclose, except on a "need to know" basis, any
aspects of any Security Procedure, (ii) notify the Custodian immediately if
the confidentiality of any Security Procedure is compromised and (iii) act to
prevent the Security Procedures from being further compromised. The Client
shall designate one or more persons, as identified in Appendix B, to receive
Security Procedure materials from the Custodian. The Client may amend
Appendix B from time to time upon not less than seven days' prior written
notice to the Custodian in accordance with Section 16 of this Agreement.
26. 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.
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.
Xxxxxx Guaranty Trust Company of New York Xxxxx Xxxxxx Precious Metals
and Minerals Fund Inc.
By:_________________________________
By:__________________________________
Title:________________________________
Title:_________________________________
Client's Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention Xxxxx Xxxxxxx
Appendix A
Depository
The Depository Trust Company
Participants Trust Company
Appendix B
Persons Authorized by the Client to Receive Security Procedure Materials
Securities, Trust & Information Services
Funds Transfer Services Agreement
US Funds Transfer
Funds Transfer Services Agreement
U.S. Funds Transfer
Xxxxxx Guaranty Trust Company of New York
Agreement dated as of _____________ between Xxxxxx Guaranty Trust Company of
New York (the "Bank") and Xxxxx Xxxxxx ____________________________ (the
"Client").
1. Scope of Agreement; Definition of Terms. This Agreement applies to
electronic, telephone, or other Payment Orders to Bank to pay money to a
beneficiary. Payments may be on the books of Bank or to other banks, for
credit to Client's accounts or for credit or payment to third parties. This
Agreement does not apply to Automated Clearing House payments, which are
subject to a separate agreement. This Agreement shall be construed in
accordance with Article 4A of New York's Uniform Commercial Code: Funds
Transfers, as amended from time to time during the term of this Agreement
("Article 4A"). All terms used herein, unless otherwise defined, shall have
the meanings ascribed to them in Article 4A.
2. Operational Procedures. Bank shall from time to time provide Client with
operational procedures and written instructions regarding Bank's funds
transfer services, including methods of accessing Client's account with Bank
or otherwise communicating with Bank, and Client agrees to adhere to such
procedures and instructions.
3. Funds Transfer Authorization. Client authorizes Bank to charge its
Authorized Account with Bank in accordance with the terms of any Payment Order
received by Bank that has been verified pursuant to Security Procedures agreed
upon by Bank and Client, whether or not such Payment Order has been otherwise
authorized by Client.
4. Security Procedures. The Security Procedures offered by Bank to verify
the authenticity of a Payment Order are set forth in Schedule A to this
Agreement. All Payment Orders, as well as communications requesting
cancellation or amendment of Payment Orders, shall be subject to Security
Procedure verification by Bank. Client shall prevent any disclosure, except
on a "need to know" basis, of any aspects of the Security Procedures agreed to
by it with the Bank, shall notify the Bank immediately if the confidentiality
of these Security Procedures is compromised, and shall act to prevent the
Security Procedures from being further compromised. Client shall designate
one or more persons, as identified in Schedule B, to receive any confidential
Security Procedure materials from Bank and complete, as required by Bank, all
Security Procedure documentation. Client may amend Schedule B from time to
time upon seven days prior written notice to Bank.
5. Receipt and Acceptance of Payment Orders. Bank shall receive and process
Payment Orders only on Bank's Funds-transfer business days and within Bank's
established cut-off hours, which Bank may revise from time to time upon prior
notice to Client. Payment Orders received after Bank's cut-off hours shall be
considered received on Bank's next Funds-transfer business day. Client shall
be responsible for identifying the routing of all funds transfers made
pursuant to any Payment Order, or shall be deemed to have appointed Bank to do
so on its behalf. Bank reserves the right to refuse or delay acceptance of
any Payment Order in the event Client does not have sufficient balances
available for withdrawal in its designated account, in the event the Payment
Order is unclear, incomplete, or received in a manner other than that agreed
upon by Bank, or for other reasons satisfactory to Bank. Bank may record all
telephonic communications received.
6. Execution of Payment Orders. Bank shall execute or pay each accepted
Payment Order by the Payment Date of the order. Bank shall debit Client's
account for the amount of each payment on the date such order is executed by
Bank, and Client shall be responsible to remit the amount of such order to
Bank upon execution thereof. Bank may execute or pay verified Payment Orders
issued in the name of Client, without inquiry, even though this may bring
about or increase an overdraft in any of Client's accounts and even though
such Payment Orders may be for the benefit of any officer, agent or employee
of Client. Bank may use any appropriate Funds-transfer system or
communications system in executing, paying or transmitting Payment Orders,
including CHIPS, Fedwire and S.W.I.F.T. Client and Bank agree to comply with
and be bound by the rules of any such Funds-transfer system through which a
Payment Order may be executed, paid or transmitted.
7. Cancellation or Modification of Payment Orders. Bank shall have no duty
to cancel or modify any Payment Order, but it shall make reasonable efforts to
do so if such request complies with the Security Procedures agreed upon by
Bank and Client for cancellation and modification of Payment Orders, and is
received by such time and in such manner as to afford Bank a reasonable
opportunity to act on it. Client agrees to bear all costs associated with the
cancellation or modification by Client of a Payment Order that has been
released to the Bank.
8. Name/Identifying Number Inconsistencies. In executing or paying a
Payment Order, Bank, as well as all other originating and receiving banks
(including the beneficiary's bank) are authorized to and may rely on the
identifying or bank account number of an intermediary bank, beneficiary's bank
or beneficiary as proper identification of the intermediary bank,
beneficiary's bank or beneficiary, even if the number, no matter where located
in the Payment Order, identifies a person different from the bank or
beneficiary identified by name. Client shall be responsible therefor and
shall be liable to Bank for any loss, liability, expense or damage Bank may
incur, including attorneys' fees and expenses of litigation.
9. Unauthorized, Duplicate or Erroneous Payment Orders. Client shall be
responsible for determining if a debit to Client's account is the result of an
unauthorized, duplicate, or otherwise erroneous Payment Order. Bank shall not
be responsible for making such a determination. Bank shall pay interest to
Client on any amount to be refunded, provided Client notifies Bank of the
relevant facts, in writing, within a reasonable time not to exceed 30 days
after the date Client received notice from Bank that the order was accepted or
executed or that Client's account was debited with respect to the order.
10. Evidence. Bank'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 sufficient
evidence of any obligations of Client to Bank and of any facts and events
relied upon by Bank.
11. Limitation of Liability. To the maximum extent permitted by law, Bank
shall not be liable for events or circumstances beyond the reasonable control
of Bank. Unless otherwise specifically agreed upon in writing, Bank shall not
be liable for indirect, special or consequential damages, even if the Bank is
advised as to the possibility of such damages.
12. Fees. Client agrees to pay to Bank as compensation for the services
provided hereunder a fee computed at rates determined by Bank from time to
time and communicated to Client in advance, as well as all assessments,
charges and expenses including, without limitation, legal expenses and
attorney's fees, incurred by Bank in connection with this Agreement. Bank is
authorized to charge Client's Authorized Account for such items.
13. Incoming Payment Orders. Payment Orders received by Bank for credit to
Client's accounts shall be deemed accepted upon electronic or other
notification to Client, or when funds with respect to the order are made
available to Client. Certain Funds-transfer systems, such as CHIPS or the
Automated Clearing House, may provide that payments be made to beneficiaries
of funds transfers through such systems are provisional until receipt of final
payment. In the event Bank does not receive final payment of a Payment Order
that Bank has accepted on Client's behalf and that has been sent by way of
such a Funds-transfer system, Bank shall be entitled to reverse any credit
given to or to obtain refund of such Payment Order from Client.
14. Drawdowns. Requests by Client to Bank to drawdown funds from an account
maintained at another bank shall be subject to the requirements set forth in
Schedule C to this Agreement. Upon Client's and any necessary third party's
execution and return to Bank of all required Schedule C documentation,
drawdown requests shall be considered Payment Orders subject to all applicable
provisions and requirements of this Agreement.
15. Termination/Amendment. Either party may terminate this Agreement upon
the sending of written notice to the other party; provided, however, that Bank
may continue to receive and act upon Payment Orders issued in the name of
Client as provided herein until Bank actually receives such notice and has a
reasonable opportunity to act on it. Sections 11 and 13 of this Agreement
shall survive termination. Bank may amend the terms and conditions of this
Agreement from time to time upon thirty days' written notice to Client.
16. Notices. All notices permitted or required hereunder shall be in
writing. Except as otherwise specified herein, notices to Bank shall be sent
to: Xxxxxx Guaranty Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attn: STIS Client Service, or to such other address as
may be specified by Bank from time to time. Notices to Client shall be sent
to Client's address as reflected in Bank's records. Unless otherwise
specified herein, notices shall be effective when received.
17. Restrictions on Types of Payment Orders. Unless Bank expressly agrees in
writing, there shall be no restrictions upon the types of Payment Orders Bank
may receive from Client.
18. Waiver. A waiver by either Bank or Client of any of the terms and
conditions of this Agreement shall not be effective unless in writing, shall
pertain only to the circumstances for which it is given and shall not
constitute a waiver of such party's rights or a waiver of any other term or
condition of this Agreement.
19. Litigation. In the event of any litigation arising out of or relating to
the matters contemplated by this Agreement, the parties agree to the exclusive
jurisdiction and venue of the courts of competent jurisdiction in the State of
New York, County of New York. In addition, the parties each waive trial by
jury and, except as otherwise specifically provided herein, any right to seek
or enforce payment of attorneys' fees.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
21. Miscellaneous. This Agreement (including Schedules and Operational
Procedures) constitutes the entire understanding of the parties with respect
to the provision of US Funds Transfer Services and may not be changed orally.
The section headings used herein are for information only and shall not affect
the interpretation of any provision of this Agreement. 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. 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.
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.
Xxxxxx Guaranty Trust Company of New York Xxxxx Xxxxxx Precious Metals
and Minerals Fund Inc.
By:____________________________________
By:__________________________________
Title:__________________________________
Title:_________________________________
Schedule A-1
Security Procedures:
XXXXXX Cash P.C.
XXXXXX Cash P.C. (MPCC)
(with Line Coded Authentication)
General
Prior to initiating funds transfers on XXXXXX Cash, Client shall complete and
file with Bank a Security Profile Form identifying the specific types of
Payment Order instructions which are to be assigned, the names of Client's
individual XXXXXX Cash operators, and any applicable limitations. The
Security Profile Form must be signed by a person or persons authorized to
enter into such arrangements with Bank in accordance with this Agreement and
Client's Corporate Resolutions, as furnished to Bank (an "Authorized
Representative"). Modifications to the information contained in the Security
Profile Form may be made, with Bank's approval, only upon the written request
of an Authorized Representative.
Bank shall notify Client by letter upon completion of the profile on the
XXXXXX System.
Freeform/Freetype Payment Orders
Bank shall provide an Authentication Chart and Initial Password to Client's
Authorized Representative. Client shall change the Initial Password after its
first use, and thereafter from time to time to protect its integrity. Bank
shall be authorized to act on any and all Freeform or Freetype Payment Orders
received through XXXXXX Cash, within the limits set forth in the Security
Profile Form, that are authenticated in accordance with the Authentication
Chart and contain the correct Client ID, Operator ID, and Password.
Client shall be responsible to safeguard the Authentication Chart and
Password, and for all use made thereof.
Line Coded Payment Orders
Bank shall provide an Authentication Chart and Initial Password to Client's
Authorized Representative. Client shall change the Initial Password after its
first use, and thereafter from time to time to protect its integrity. Client
shall file a request in a writing signed by an Authorized Representative, or
Client shall file a request by electronic means using the Password, specifying
each of Client's accounts to and from which funds may be transferred and, with
respect to each such account, a listing of banks, account names and account
numbers to which funds may be transferred, any limitations thereon, and any
other data requested by Bank. Bank shall be authorized to act on any and all
Line Coded Payment Orders received through XXXXXX Cash, within the established
Line Code parameters [and the limits set forth in the Security Profile Form],
that are authenticated in accordance with the Authentication Chart and contain
the correct Client ID, Operator ID, and Password.
Client shall be responsible to safeguard the Authentication Chart and
Password, and for all use made thereof.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-1 be modified or deleted only by following the security procedures
set forth in this Schedule A-1.
MPCC Workstation
If Client is utilizing an MPCC workstation, Client shall take appropriate
steps to safeguard the workstation against unauthorized use. Client shall
utilize the list, modify and delete functions on the Money Transfer Functions
menu of MPCC to confirm that all funds transfer requests to be sent to Bank
are valid and authorized by Client prior to uploading them to XXXXXX Cash
through MPCC.
Schedule A-2
Security Procedures:
XXXXXX Cash P.C.
XXXXXX Cash P.C. (MPCC)
(without Line Coded Authentication)
General
Prior to initiating funds transfers on XXXXXX Cash, Client shall complete and
file with Bank a Security Profile Form identifying the specific types of
Payment Order instructions which are to be assigned, the names of Client's
individual XXXXXX Cash operators, and any applicable limitations. The
Security Profile Form must be signed by a person or persons authorized to
enter into such arrangements with Bank in accordance with this Agreement and
Client's Corporate Resolutions, as furnished to Bank (an "Authorized
Representative"). Modifications to the information contained in the Security
Profile Form may be made, with Bank's approval, only upon the written request
of an Authorized Representative.
Bank shall notify Client by letter upon completion of the profile on the
XXXXXX System.
Freeform/Freetype Payment Orders
Bank shall provide an Authentication Chart and Initial Password to Client's
Authorized Representative. Client shall change the Initial Password after its
first use, and thereafter from time to time to protect its integrity. Bank
shall be authorized to act on any and all Freeform or Freetype Payment Orders
received through XXXXXX Cash, within the limits set forth in the Security
Profile Form, that are authenticated in accordance with the Authentication
Chart and contain the correct Client ID, Operator ID, and Password.
Client shall be responsible to safeguard the Authentication Chart and
Password, and for all use made thereof.
Line Coded Payment Orders
Bank shall provide an Initial Password to Client's Authorized Representative.
Client shall change the Initial Password after its first use, and thereafter
from time to time to protect its integrity. Client shall file a request in a
writing signed by an Authorized Representative, or Client shall file a request
by electronic means using the Password, specifying each of Client's accounts
to and from which funds may be transferred and, with respect to each such
account, a listing of banks, account names and account numbers to which funds
may be transferred, any limitations thereon, and any other data requested by
Bank. Bank shall be authorized to act on any and all Line Coded Payment
Orders received through XXXXXX Cash within the established Line Code
parameters [and the limits set forth in the Security Profile Form] and that
contain the correct Client ID, Operator ID, and Password.
Client shall be responsible to safeguard the Password, and for all use made
thereof.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-2 be modified or deleted only by following the security procedures
set forth in this Schedule A-2.
MPCC Workstation
If Client is utilizing an MPCC workstation, Client shall take appropriate
steps to safeguard the workstation against unauthorized use. Client shall
utilize the list, modify and delete functions on the Money Transfer Functions
menu of MPCC to confirm that all funds transfer requests to be sent to Bank
are valid and authorized by Client prior to uploading them to XXXXXX Cash
through MPCC.
Schedule A-3
Security Procedure:
Telephone (Freeform/Freetype;
Line Coded)
General
Prior to initiating funds transfers over the telephone, Client shall supply
Bank with a list of names of Authorized Callers. The list must be signed by a
person or persons authorized to complete Security Procedure documentation in
accordance with this Agreement and Client's Corporate Resolutions, as
furnished to Bank (an "Authorized Representative"). Modifications to the list
may be made, with Bank's approval, only upon the written request of an
Authorized Representative. Bank shall provide to Client one or more telephone
numbers to be used in connection with telephone funds transfers.
Freeform/Freetype Payment Orders
Bank shall provide an Authentication Chart to Client's Authorized
Representative. Bank shall be authorized to act on any and all Freeform or
Freetype Payment Orders received over the telephone from a caller who
represents himself/herself to be a person on the Authorized Caller list and
who provides authentication in accordance with the Authentication Chart.
Client shall be responsible to safeguard the Authentication Chart, and for all
use made thereof.
Line Coded Payment Orders
Client shall file a request in a writing signed by an Authorized
Representative, specifying each of Client's accounts to and from which funds
may be transferred and, with respect to each such account, a listing of banks,
account names and account numbers to which funds may be transferred, any
limitations thereon, and any other data requested by Bank. Bank shall be
authorized to act on any and all Line Coded Payment Orders received over the
telephone, within the established Line Code parameters, from a caller who
represents himself/herself to be a person on the Authorized Caller list.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-3 be modified or deleted only by following the security procedures
set forth in this Schedule A-3.
Schedule A-4
Security Procedure:
Telex
General
Bank shall provide to Client one or more telex addresses to be used in
connection with telex funds transfers.
Freeform/Freetype Payment Orders
Bank shall provide an Authentication Chart to Client's Authorized
Representative. Bank shall be authorized to act on any and all Freeform or
Freetype Payment Orders received by telex that are authenticated in accordance
with the Authentication Chart. Bank shall acknowledge authenticated Payment
Orders.
Client shall be responsible to safeguard the Authentication Chart, and for all
use made thereof.
Line Coded Payment Orders
Bank shall provide an Authentication Chart to Client's Authorized
Representative. Client shall file a request in a writing signed by an
Authorized Representative, specifying each of Client's accounts to and from
which funds may be transferred and, with respect to each such account, a
listing of banks, account names and account numbers to which funds may be
transferred, any limitations thereon, and any other data requested by Bank.
Bank shall be authorized to act on any and all Line Coded Payment Orders
received by telex, within the established Line Code parameters, that are
authenticated in accordance with the Authentication Chart. Bank shall
acknowledge authenticated Payment Orders.
Client shall be responsible to safeguard the Authentication Chart, and for all
use made thereof.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-4 be modified or deleted only by following the security procedures
set forth in this Schedule A-4.
Schedule A-5
Security Procedures:
S.W.I.F.T.
General
Bank shall provide cryptographic keys to the person or persons designated by
Client in Schedule B to receive any confidential Security Procedure materials
from Bank (an "Authorized Representative"), for use with Client's approved
encryption/authentication security device. Bank shall provide the Authorized
Representative (or his designee) with replacement keys from time to time.
Bank shall be authorized to act on any and all Payment Orders received through
S.W.I.F.T. that are authenticated in accordance with the cryptographic keys.
Client shall be responsible to safeguard the cryptographic keys, and for all
use made thereof.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-5 be modified or deleted only by following these security
procedures.
Schedule A-6
Security Procedure:
Telephone (without Authentication)*
* Client's choice of this Security Procedure A-6 shall constitute a rejection
of the on-line and/or authenticated Security Procedures which have been
offered to Client by Bank, and an affirmation that this Security Procedure is
a commercially reasonable security procedure for Client's purposes pursuant to
UCC 4A-202. Client agrees to be bound by any Payment Order, whether or not
authorized, issued in its name and accepted by Bank in compliance with this
Security Procedure.
General
Prior to initiating funds transfers over the telephone, Client shall supply
Bank with a list of names of Authorized Callers. The list must be signed by a
person or persons authorized to complete Security Procedure documentation in
accordance with this Agreement and Client's Corporate Resolutions, as
furnished to Bank (an "Authorized Representative"). Modifications to the list
may be made, with Bank's approval, only upon the written request of an
Authorized Representative. Bank shall provide to Client one or more telephone
numbers to be used in connection with telephone funds transfers.
Freeform/Freetype Payment Orders
Bank shall be authorized to act on any and all Freeform or Freetype Payment
Orders received over the telephone from a caller who represents
himself/herself to be a person on the Authorized Caller list.
Line Coded Payment Orders
Client shall file a request in a writing signed by an Authorized
Representative, specifying each of Client's accounts to and from which funds
may be transferred and, with respect to each such account, a listing of banks,
account names and account numbers to which funds may be transferred, any
limitations thereon, and any other data requested by Bank. Bank shall be
authorized to act on any and all Line Coded Payment Orders received over the
telephone, within the established Line Code parameters, from a caller who
represents himself/herself to be a person on the Authorized Caller list.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-6 be modified or deleted only by following the security procedures
set forth in this Schedule A-6.
Schedule A-7
Security Procedures:
XXX
XXXXXX Batch File Transfer
General
Prior to initiating Batch File Transfers ("BFTs") and/or Electronic Data
Interchange ("EDI") funds transfers and associated transaction sets, Client
shall complete and file with Bank an EDI/BFT Security Profile Form identifying
any applicable limitations on authorized transactions. The EDI/BFT Security
Profile Form must be signed by a person or persons authorized to enter into
such arrangements with Bank in accordance with this Agreement and Client's
Corporate Resolutions, as furnished to Bank (an "Authorized Representative").
Modifications to the information contained in the EDI/BFT Security Profile
Form may be made, with Bank's approval, only upon the written request of an
Authorized Representative.
Bank shall notify Client by letter upon completion of the profile on Bank's
system.
Bank shall provide a list of Client Identifiers and Passwords to Client's
Authorized Representative. Client shall change the Passwords from time to
time to protect their integrity. Bank shall be authorized to act on any and
all BFT and EDI Payment Orders and transaction sets received by Bank, within
the limits set forth in the Security Profile Form, that contain the correct
Client Identifiers and Passwords.
Client shall be responsible to safeguard the Client Identifiers and Passwords,
and for all use made thereof.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders and transaction sets initiated in
accordance with this Schedule A-7 be modified or deleted only by following
these security procedures.
Schedule A-8
Security Procedure:
Contingency Backup Procedures
Schedule A-9
Security Procedures:
XXXXXX Access
General
Prior to initiating funds transfers on XXXXXX Access, CLIENT shall:
Designate a Security Administrator who will be responsible for the
creation and maintenance of all client user profiles on the XXXXXX
Access workstation. These profiles will contain the funds transfer
actions that Client chooses for each workstation user.
Designate a Systems Administrator who will be responsible to upload all
funds transfer instructions from Client's workstation to Bank and
download all reports from Bank to Client's workstation.
Complete and file with Bank a Security and Systems Administrator Profile
form identifying these designees. The Security and Systems
Administrator Profile form must be signed by a person or persons
authorized to enter into such arrangements with Bank in accordance with
this Agreement and Client's Corporate Resolutions, as furnished to Bank
(an "Authorized Representative").
Complete and file with Bank an Account Set-up Profile form identifying
the accounts that Client will access via the workstation. The Account
Set-up Profile form must be signed by an Authorized Representative.
Execute a XXXXXX Access License Agreement for encryption key data and/or
equipment.
Modifications to the information contained in the Security and Systems
Administrator Profile form and the Account Set-up Profile form may be made,
with Bank's approval, only upon the written request of an Authorized
Representative.
Bank shall provide an Initial Password to Client's Authorized Representative.
Client shall change the Initial Password after its first use, and thereafter
from time to time to protect its integrity. Bank shall be authorized to act
on any and all Payment Orders received through Client's identified XXXXXX
Access workstation that contain the correct profile information, ID's and
Password, and that is encrypted in accordance with Client's designated
encryption key.
Cancellation / Modification of Payment Orders
Client may request that Payment Orders initiated in accordance with this
Schedule A-9 be modified or deleted only by following the security procedures
set forth in this Schedule A-9.
Schedule B
Persons Authorized by Client to Receive Security Procedure Materials
Schedule C
Drawdown Documentation
Securities, Trust & Information Services
(GCIC - Brussels)
Global Custody Agreement
Global Custody Agreement
Agreement dated as of _____________ between Xxxxxx Guaranty Trust Company of
New York (the "Custodian"), acting through its office at 00 xxxxxx xxx Xxxx,
Xxxxxxxx, Xxxxxxx, and Xxxxx Xxxxxx __________________________ (the "Client").
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. Definitions. 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.
"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.
"Communication Products" has the meaning set forth in Section 28.
"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.
"Xxxxxx Affiliate" means any office or branch of Xxxxxx Guaranty Trust Company
of New York ("Xxxxxx") and any other entity that directly, or indirectly
through one or more intermediaries, controls Xxxxxx or that is controlled by
or is under common control with Xxxxxx.
"Securities Account" means any securities account opened by the Custodian on
its books in the name of the Client.
"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 the Client
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.
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, or filing with, any
governmental body, agency or official (including without limitation any
exchange control approvals) other than those set forth in Appendix B under
"Consents and Filings", which have been duly taken or made or will be duly
taken or made as and when required; 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. In
addition, the Client represents and warrants that each of the statements set
forth in Appendix B under "Additional Information" is true and correct. The
Client represents, warrants and covenants that the Custodian shall be entitled
to deal with all Securities free of any proprietary or equitable interest of
any person or entity (other than interests 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 or in Appendix B ceases to be true and
correct as of any date after the date hereof.
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, the Client'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 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. The Client agrees that all Securities held by the Custodian
directly, or indirectly through any Subcustodian or Securities Depository,
shall be subject to the provisions of the Belgian Royal Decree No. 62 of
November 10, 1967, as amended. In accordance with the Royal Decree, 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 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 funds advanced
on behalf of the Client by such 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 Appendix A hereto. The Custodian reserves the right to
add and delete subcustodians and securities depositories to and from such list
from time to time by notice to the Client. 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 30 days' prior written notice,
during which time the Client may make arrangements to have the Securities
transferred to another Custodian if it does not approve of the replacement.
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 right, among others, of transferring the
balance of any subaccount of the Cash Account to any other subaccount at any
time and without 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
Xxxxxx 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 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.
6. 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 17 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 the Securities Account and available for
delivery and only:
(i) as specified by an Authorized Instruction;
(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 and 15; or
(v) upon the termination of this Agreement as set forth in Section 17 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 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.
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. 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 and (ii) the amount
of Cash held on deposit in each currency. The Client agrees that each such
statement shall be binding on the Client 60 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 theretofore notified the Custodian in
writing of any inaccuracy in such statement.
(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. The Custodian shall have no obligation to
require any Subcustodian or Securities Depository to maintain records for any
specified period of time.
(c) Other Information. From time to time the Custodian may provide
additional reporting information to the Client on terms and conditions agreed
upon by the parties hereto in writing. The additional information may include
data obtained from third parties, such as pricing valuation information
relating to the Securities. The Client agrees that it shall not redistribute
or resell data obtained by the Custodian from third parties, except that it
may provide such data to the beneficial owners of the Securities as recorded
on the Client's books and records.
9. Taxes. The respective responsibilities of the Client and the Custodian
with respect to tax matters are set forth in Appendix C hereto and
incorporated by reference herein.
10. Responsibilities; Indemnification by the Custodian.
(a) Standard of Care. The Custodian shall use reasonable care in the
performance of its duties hereunder and shall exercise the same degree of care
with respect to the Securities as it would with respect to its own securities.
The Custodian shall require each Subcustodian to use reasonable care in the
performance of its duties and to exercise the same degree of care with respect
to the Securities as it would with respect to its own securities. The
Custodian shall be responsible to ensure that each Subcustodian that is a
Xxxxxx Affiliate performs in accordance with the foregoing standard. The
Custodian's responsibility with respect to any Securities held by a
Subcustodian (other than a Xxxxxx Affiliate) 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 Xxxxxx Affiliate) to
exercise reasonable care in the selection or retention of such Subcustodian or
carrier. The Custodian shall have no responsibility for the selection or
retention of any Securities Depository or for the performance of any
Securities Depository.
(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 Xxxxxx
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 Xxxxxx 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 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 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.
(d) Authorized Instructions. Neither the Custodian nor any Subcustodian
shall be liable for any action taken upon 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 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. Notwithstanding 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, or
malfunction or failures caused by computer virus, 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) Delays. Except in the case of a failure by the Custodian or a Xxxxxx
Affiliate to exercise the standard of care required by Section 10(a), the
Custodian shall not be liable for delays in carrying out payment instructions
given by the Client. In the event that a delay in the carrying out of a
payment instruction is caused by such a failure of the Custodian or a Xxxxxx
Affiliate, the liability of the Custodian shall not exceed an interest
equivalent for the period from the day when the payment would have been
carried out, but for the negligence of the Custodian or such Xxxxxx Affiliate,
until the day when it is actually carried out (excluding any portion of such
period during which the Custodian cannot carry out such instructions as a
result of any event referred to in Section 11(h)); provided that if the Client
shall fail to report the delay to the Custodian within 10 days from the date
when the payment would, but for the negligence of the Custodian or a Xxxxxx
Affiliate, have been made, then the Custodian shall not be liable for an
interest equivalent for more than a total of 10 days.
(j) 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.
(k) No Investment Advice. Neither the Custodian nor any Subcustodian or
Xxxxxx Affiliate is under any duty to provide the Client with investment
advice or to supervise its investments.
(l) 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 (or Securities which are otherwise not freely transferable or
deliverable without encumbrance in any relevant market).
(m) Third Party Information. The Custodian shall have no responsibility for
the accuracy of any information provided by the Custodian to the Client that
has been obtained from third parties pursuant to Section 7 or 8(c) of this
Agreement.
12. Use of Xxxxxx 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 Xxxxxx
Affiliates or brokers or other financial organizations of its choice, subject
to the fees and commissions in effect from time to time. 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 Xxxxxx Affiliate acts as a dealer, the Custodian may buy or
sell such Securities from or to either itself, as principal, or such Xxxxxx
Affiliate.
(b) Disclosure to Xxxxxx Affiliates. Notwithstanding the provisions of
Section 26 hereof, the Custodian may disclose to any Xxxxxx Affiliate details
with respect to the Securities and the transactions effected hereunder. Such
disclosure shall be for the purpose of identifying banking, securities and
financial services that Xxxxxx Affiliates may be able to provide to the
Client.
(c) Sub-Contracting. The Client hereby agrees that the Custodian may arrange
with any Xxxxxx 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 determined by the
Custodian from time to time and communicated to the Client in advance, as well
as all assessments, charges and expenses (including legal expenses and
attorney's fees associated with enforcing the Custodian's rights hereunder)
incurred by the Custodian in connection with this Agreement.
14. Right to Debit and Set-Off. The Custodian has the right to debit any
subaccount of the Cash Account for any amount payable by the Client in
connection with any and all obligations of the Client to the Custodian,
whether or not relating to or arising under this Agreement. In addition to
the rights of the Custodian under applicable law and other agreements, at any
time when the Client shall not have honored any and all of its obligations to
the Custodian, whether or not relating to or arising under this Agreement, the
Custodian shall have the right without notice to the Client to retain or set-
off, against such obligations of the Client, any assets the Custodian or any
Xxxxxx Affiliate may directly or indirectly hold for the account of the
Client, and any obligations (whether matured or unmatured) that the Custodian
or any Xxxxxx Affiliate may have to the Client in any currency or Composite
Currency Unit, including time deposits and all assets credited to any
Securities Account. Any such asset of, or obligation to, the Client may be
transferred among the Custodian and any Xxxxxx Affiliates in order to effect
the above rights.
15. Security Interests. In order to secure the prompt and complete payment
when due of any and all obligations of the Client to the Custodian, now
outstanding or which may be outstanding at any time in the future, whether or
not relating to or arising out of this Agreement, the Client hereby pledges
and grants to the Custodian a security interest in (i) all of the Client's
right, title and interest in and to all Cash Accounts, including any credit or
debit balance which now appears or may at any time in the future appear in any
currency or Composite Currency Unit subaccount of a Cash Account, (ii) all of
the Client's right, title and interest in and to all time deposit accounts and
notice accounts that the Client may open from time to time with the Custodian,
(iii) all of the Client's right, title and interest in and to all Securities
Accounts and the amount of all securities which are now or at any time in the
future shall be standing to the credit of a Securities Account (clauses (i),
(ii) and (iii) of this Section 15 being referred to collectively herein as the
"Collateral"), (iv) all amounts of cash, securities or other property or
countervalue received or to be received with respect to or in exchange for any
and all of the then existing Collateral which are, or are intended, to be
credited to a Cash Account or a Securities Account and (v) to the extent not
covered by the foregoing, all proceeds, product, offspring, rents or profits
of any or all of the foregoing (whether acquired before or after the
commencement of any bankruptcy or liquidation proceeding by or in respect of
the Client) which are, or are intended to be credited to a Cash Account or a
Securities Account. All time deposit accounts and notice accounts shall be
deemed constituted for an indefinite period, even though the Client and the
Custodian may agree from time to time that interest thereon will be paid on
specified dates rather than only at final maturity. The foregoing security
interests are granted as security only and shall not subject the Custodian to,
or transfer or in any way affect or modify, any obligation or liability of the
Client with respect to any of the Collateral or any transaction in connection
therewith. The Client authorizes the Custodian to perform all acts which the
Custodian, in its sole discretion, deems necessary or desirable to perfect and
preserve its security interests and rights under this Section 15. Upon any
breach by the Client of its obligations hereunder, the Custodian shall be
entitled to exercise all of the remedies available to a secured creditor under
applicable law.
16. 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.
17. 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 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. If this Agreement is terminated by the Custodian or
the Client, but the Custodian or a Xxxxxx Affiliate continues to provide other
services to the Client in connection with which the Client uses Communication
Products, then the provisions of Sections 27 and 28 hereof shall survive the
termination of this Agreement until the time that no such other services
continue to be provided by the Custodian or a Xxxxxx Affiliate to the Client
or until otherwise terminated in writing by the Client or the Custodian. The
provisions of Sections 20, 24, 26 and Appendix G hereof and the indemnity
provisions of this Agreement and the provisions limiting the liabilities of
the Custodian and the Subcustodians shall survive the termination of this
Agreement (including any subsequent termination of Sections 27 and 28 hereof).
18. 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 D 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 conclusive evidence of the
contents of such instruction, notwithstanding any conflicting written
confirmation or record of such instruction provided by the Client.
19. Amendments and Waivers. Any provision of this Agreement (including
Appendices B through G 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.
20. Claims. Any claim arising out of or related to this Agreement must be
brought no later than one year after such claim has accrued.
21. 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
State of New York except that the provisions set forth in Sections 4(b) and 15
shall be governed by the law of Belgium. The Client hereby submits to the
non-exclusive jurisdiction of any any 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.
22. 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.
23. Headings. The section headings used herein are for information only and
shall not affect the interpretation of any provision of this Agreement.
24. 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.
25. Integration. This Agreement constitutes the entire agreement between the
parties hereto as it pertains to the provision of global custody services and
supersedes any and all prior agreements and understanding, oral or written,
relating to the subject matter hereof.
26. Confidentiality. 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
(including, but not limited to, article 28 of the Belgian Law of December 4,
1990 relating to securities transactions suspected of constituting market
manipulation, xxxxxxx xxxxxxx and other breaches of financial regulations),
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 Depository or the terms of the
organizational documents of the issuer of any Security or the term of any
Security itself.
27. Security Procedures. The Client acknowledges that it has been fully
informed of the protections and risks associated with the various methods of
communication for transmitting Authorized Instructions to the Custodian. The
Custodian has recommended that the Client transmit Authorized Instructions to
the Custodian using one or more specified methods of communication and has
recommended a type of Security Procedure for each such method. The Client
hereby agrees that the Security Procedure actually agreed between the Client
and the Custodian shall be deemed commercially reasonable even if such
Security Procedure offers less protection than the Security Procedure
recommended by the Custodian. If the Client elects to transmit Authorized
Instructions to the Custodian by a method of communication for which no
Security Procedure has been agreed, the Client agrees to be bound by any such
Authorized Instruction that the Custodian believes in good faith to have been
given by an Authorized Person. The Client shall (i) not disclose, or permit
any Authorized Person to disclose, except on a "need to know" basis, any
aspects of any Security Procedure, (ii) notify the Custodian immediately if
the confidentiality of any Security Procedure is compromised and (iii) act to
prevent the Security Procedures from being further compromised. The Client
shall designate one or more persons, as identified in Appendix E, to receive
Security Procedure materials from the Custodian. The Client may amend
Appendix E from time to time upon seven days' prior written notice to the
Custodian in accordance with Section 18 of this Agreement.
28. License. The Custodian hereby grants to the Client a personal,
nontransferable 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 F or hereafter identified by the Custodian in
writing as communication products (the "Communication Products"), for the
respective terms set forth in Appendix F and at the respective locations set
forth in Appendix F, 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 G.
29. 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.
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.
Xxxxxx Guaranty Trust Company of Xxxxx Xxxxxx Precious Metals
and Minerals New York Fund Inc.
By: ______________________________ By:
______________________________
Title: ______________________________ Title:
______________________________
Appendix A
Global Custody Network
Country Subcustodian Depository
Argentina Xxxxxx Guaranty Trust Co. Caja de Valores
of New York - Buenos Aires Office
Australia ANZ
Banking Group Austraclear
Austria Creditanstalt-Bankverein OeKB-WSB
(Wertpapiersammelbank
bei der
Oesterreichischen
Kontrollbank AG)
Belgium Xxxxxx Guaranty Trust Co. CIK (Caisse
Interprofessionnelle
of New York - Brussels Office de Depots et
de Virements de Titres)
Euroclear Clearance
System Limited
Brazil Xxxxxx Guaranty Trust Co. BOVESPA
(Bolsa de Valores de Sao Paulo;
of New York - Sao Paulo Office equities)
BVRJ (Bolsa de Valores
de Rio de Janeiro;
equities)
CETIP (Central de
Custodia e Liquidacao
Financiera de Titulos;
corporate bonds)
SELIC (Sistema Especial
de Liquidacao e
Custodia; government
securities)
Canada Canadian Imperial Bank CDS (Canadian Depository
for
of Commerce Securities)
Chile Citibank, N.A.
People's Republic of China - Hongkong and Shanghai Banking
Shanghai and Shenzhen Corporation
Denmark Den Danske Bank VP
(Vaerdipapircentralen;
Danish Securities
Centre)
Finland Union Bank of Finland
France Xxxxxx Guaranty Trust Co. SICOVAM
(Societe Interprofessionnelle
of New York - Paris Office Pour La
Compensation des Valeurs Mobilieres)
Germany X.X. Xxxxxx GmbH DKV (Deutscher
Kassenverein)
Greece National Bank of Greece S.A.
Hong Kong Hongkong and Shanghai Banking CCASS (Central Clearing
and Settlement
Corporation System)
Xxxxxxx Xxxxxxxx Xxxxxxxx Xx
Xxxxx Xxxx Xxxx and Shanghai Banking
Corporation
Indonesia Hongkong and Shanghai Banking
Corporation
Ireland Allied Irish Banks PLC
Italy Xxxxxx Guaranty Trust Co. Monte Titoli
S.p.A.
of New York - Milan Office
Japan The Fuji Bank, Ltd. JASDEC (Japanese
Securities
Depository Center)
JSA (Japan Securities
Agency)
Korea Bank of Seoul KSSC (Korea
Securities Settlement
Corporation)
Luxembourg Banque Internationale a CEDEL (Central de
Livraison
Luxembourg, S.A. des Valeurs Mobilieres)
Malaysia Hongkong and Shanghai Banking SCANS (Securities
Clearing Automated
Corporation Network Services)
Mexico Citibank, N.A. Indeval
Netherlands Bank Van Haften Labouchere NECIGEF
(Nederlands Centraal Instituut Voor Giraal Effectenverkeer BV)
New Zealand ANZ Banking Group Ltd. Austraclear
Norway Den Norske Bank VPS
(Verdipapirsentralen;
Norwegian Registry of
Securities)
Philippines Hongkong and Shanghai Banking
Corporation
Portugal Banco Espirito Santo
e Comercial de Lisboa
Singapore Development Bank of Singapore (CDP) Central Depository
Pte
Spain Xxxxxx Guaranty Trust Co.
of New York - Madrid Office
Banco de Santander
Sri Lanka Hongkong and Shanghai Banking
Corporation
Sweden Skandinaviska Enskilda Banken VPC
(Vaerdepappercentralen;
Securities Register
Centre)
Switzerland Xxxxxx Guaranty Trust Co. SEGA (Schweizerische
of New York - Zurich Office Effekten - Giro
AG)
Taiwan Hongkong and Shanghai Banking
Corporation
Thailand Hongkong and Shanghai Banking
Corporation
Turkey Citibank, N.A.
Ottoman Bank
United Kingdom Xxxxxx Guaranty Trust Co. TALISMAN
(Transfer, Accounting and
of New York - London Office Lodgement for
Investors Stock Management
for Jobbers) - Sepon
Limited
CGO (Central Gilts
Office)
CMO (Central Money
Markets Office)
ESO (European
Settlements Office)
United States Xxxxxx Guaranty Trust Co. The
Depository Trust Co.
of New York
The Participants Trust
Co.
Venezuela Citibank, N.A.
Appendix B
Consents and Filings
Additional Information
Appendix C
Tax Matters
The provisions of this Appendix C shall govern the rights, responsibilities,
duties and liabilities of the Client and the Custodian with respect to the
payment or withholding of all taxes, assessments, duties or other governmental
charges (including any interest or penalty thereon or with respect thereto)
imposed by any governmental authority upon or with respect to (i) any Cash,
(ii) any Securities, and any distributions with respect thereto, and (iii) the
purchase, sale, loan or other transfer of any Security by the Custodian, any
Subcustodian or any Securities Depository on behalf of the Client and any
proceeds or other income from such a sale, loan or other transfer (any such
tax, assessment, duty or other governmental charge being referred to herein as
a "Tax"). All capitalized terms not defined herein shall have the meanings
assigned to them in the Global Custody Agreement.
1. As further provided in this Appendix C, the Client shall be liable for all
Taxes and shall indemnify and hold harmless the Custodian, each Subcustodian
and each Securities Depository for the amount of any Tax that the Custodian or
such Subcustodian or Securities Depository 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).
2. The Custodian shall, and shall instruct each Subcustodian and Securities
Depository to, withhold the amount of any Tax which the Custodian or such
Subcustodian or Securities Depository is required to withhold under applicable
law upon collection (on behalf of the Client pursuant to an Authorized
Instruction) of (i) any dividend, interest or other cash distribution made
with respect to any Security, (ii) any stock dividend or distribution of
rights, warrants or other property with respect to any Security and (iii) any
proceeds or income from the sale, loan or other transfer of any Security. The
Custodian shall, and shall instruct each Subcustodian and Securities
Depository to, timely remit the amount of any such tax withheld to the
appropriate governmental authority in the manner required by applicable law.
The Custodian has, and is authorized to grant to each Subcustodian and
Securities Depository, complete discretion to determine the amount of any Tax
which the Custodian or such Subcustodian or Securities Depository is required
to withhold from any distribution, proceeds or income under any applicable
law.
3. In the event that (A) the Custodian or any Subcustodian or Securities
Depository is required under applicable law to pay any Tax on behalf of the
Client (including a payment due by reason of an earlier failure to withhold
such Tax) or (B) the Custodian or any Subcustodian or Securities Depository is
required under applicable law to withhold or otherwise pay any Tax from or
with respect to any distribution or payment in property other than cash which
is collected by the Custodian or such Subcustodian or Securities Depository
(on behalf of the Client pursuant to an Authorized Instruction), the Custodian
shall be authorized to withdraw Cash from any subaccount of the Cash Account
in the amount and currency required to pay such Tax and to use such Cash, or
to remit such Cash to the appropriate Subcustodian or Securities Depository
for the timely payment of such Tax in the manner required by applicable law.
If the Cash Account does not contain sufficient Cash in the appropriate
currency to pay such Tax, the Custodian shall be authorized to withdraw Cash
of any other currency from any subaccount of the Cash Account in an amount
which, when converted to the appropriate currency at the exchange rate
prevailing on the date of withdrawal, is sufficient to enable the Custodian or
such Subcustodian or Securities Depository to pay such Tax. 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 currency) required, and the Client shall
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 Custodian or any Subcustodian or Securities Depository is required to pay
any such Tax prior to the deposit by the Client of an additional amount as
required hereunder, the Custodian shall be authorized to withdraw such
additional amount (following deposit thereof) from any subaccount of the Cash
Account for payment to its own account or the account of such Subcustodian or
Securities Depository in satisfaction of the Client's indemnification
obligation hereunder.
4. The information delivered to the Client each month pursuant to Section
8(a) of the Global Custody Agreement shall include the amount of each Tax (i)
withheld by the Custodian or any Subcustodian or Securities Depository from
any payment collected on behalf of the Client, (ii) withheld by the payor of
any payment collected by the Custodian or any Subcustodian or Securities
Depository on behalf of the Client or (iii) paid by the Custodian or any
Subcustodian or Securities Depository on behalf of the Client with Cash
withdrawn from the Cash Account or otherwise obtained pursuant to paragraph 3
of this Appendix C, in each case during the period since the date of the
immediately preceding monthly report.
5. In the event that the Client is eligible, pursuant to the provisions of
any tax treaty, for a reduced rate of, or exemption from, any Tax which the
Custodian or any Subcustodian or Securities Depository is otherwise required
to withhold or pay on behalf of the Client under any applicable law, the
Custodian shall, or shall instruct such Subcustodian or Securities Depository
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
has received from the Client all documentary evidence of residence or other
qualification for such reduced rate or exemption required to be received under
such applicable law. As soon as practicable following the execution of the
Global Custody Agreement, the Client shall notify the Custodian of the
Client's eligibility for the benefits of any tax treaty between the Client's
country of residence and the countries listed in Appendix A to the Global
Custody Agreement and to the extent possible, furnish to the Custodian all
forms or other documentary evidence required under applicable law to establish
such eligibility. The Custodian shall, and shall instruct each Subcustodian
and Securities Depository to, withhold or pay any Tax at a reduced rate
hereunder, or refrain from withholding or paying any Tax, only in reliance
upon documentation furnished to the Custodian pursuant to this paragraph 5.
The Custodian and each Subcustodian and Securities Depository shall have no
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
and Securities Depository 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.
6. In the event that the Custodian becomes aware that any person is required
under applicable law of any country to withhold any Tax from any payment
collected by the Custodian or any Subcustodian or Securities Depository on
behalf of the Client, and the Client has previously provided to the Custodian
pursuant to paragraph 5 of this Appendix C all forms or other documentary
evidence required under applicable law to establish eligibility for an
exemption from or reduced rate of such withholding pursuant to any tax treaty
between such country and the Client's country of residence, then the Custodian
shall furnish, or shall instruct such Subcustodian or Securities Depository to
furnish, to the extent permissible and effective to establish such eligibility
under applicable law, such forms or other documentary evidence on behalf of
the Client to the person required to withhold such Tax. In the event that the
Custodian or such Subcustodian or Securities Depository is not permitted under
applicable law to furnish the necessary forms or other documentary evidence on
behalf of the Client, the Custodian shall make reasonable efforts to notify
the Client, reasonably promptly after it becomes aware of such requirement,
that the Client is required under such law to furnish such items to the person
required to withhold such Tax. In the event that (i) the Tax which any such
person is required to withhold is imposed under an applicable law of a country
other than those listed in Appendix A to the Global Custody Agreement or (ii)
the Custodian or an appropriate governmental authority or withholding agent
has determined that any forms or other documentation previously provided to
the Custodian pursuant to paragraph 5 of this Appendix C are insufficient to
establish the eligibility of the Client for a reduced rate of, or exemption
from, withholding of any Tax imposed under the applicable law of a country
listed in Appendix A to the Global Custody Agreement, the Custodian shall make
reasonable efforts to so notify the Client reasonably promptly after the
Custodian becomes aware that such Tax is required to be withheld.
7. In the event that (i) the Client is eligible pursuant to the provisions of
any tax treaty for a reduced rate of, or exemption from, withholding of any
Tax, which reduced rate or exemption is obtainable only by means of
application to the appropriate governmental authority for a refund of tax paid
or withheld, or (ii) the Custodian or any Subcustodian or Securities
Depository withholds from any distribution, proceeds or income collected on
behalf of the Client an amount which is subsequently determined to be greater
than the amount required under applicable law to have been withheld, the
Custodian shall, or shall instruct the appropriate Subcustodian or Securities
Depository to, assist the Client, to the extent permissible under applicable
law, to obtain a refund of such Tax from the appropriate governmental
authority in the amount for which the Client is eligible.
Appendix D
Notices to the Custodian
Xxxxxx Guaranty Trust Company 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
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention Xxxxx Xxxxxxx
Appendix E
Persons Authorized by the Client to Receive Security Procedure Materials
[To be provided by Client]
Appendix F
Communication Products
COMMUNICATION
PRODUCT
TERM
(check one)
NU
MBER
OF
COPIES
LOCATION(S)
Xxxxxx Access
As long as this
Agreement remains in
effect
One year with
automatic
renewal for
successive one
year terms thereafter
Fixed term until
________
One
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
________
As long as this
Agreement remains in
effect
One year with
automatic
renewal for
successive one
year terms thereafter
Fixed term until
________
Appendix G
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 other party 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 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 "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 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.
9. 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, funds transfers, foreign exchange etc.) offered by Xxxxxx
Guaranty Trust Company of New York and its affiliates to the Client. The
provisions of this Agreement and any documents relating to other services
offered by Xxxxxx Guaranty Trust Company of New York 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.
10. 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
Xxxxxx Guaranty Trust Company of New York nor any affiliate or subsidiary of
Xxxxxx Guaranty Trust Company of New York that provides data with respect to
intraday reports makes any representation or warranty that such reports are
accurate or complete.
In addition to the Federal Reserve Bank of New York
In addition to the central bank, if applicable.
JSA currently does not meet Rule 17-5 requirements.
Citibank meets the capital requirements of Rule 17f-5 and Ottoman bank
currently does not.
Rev. 4/93 6.CAS
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Rev. 2/94 3.CUS
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Rev. 2/94 2.CUS
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