Rev. 2/94 2.CUS
0000.xx
Securities, Trust & Information Services
(GCIC -
Brussels)
Global Custody Agreement
0
Global Custody Agreement
Agreement dated as of _______, 1995 between Xxxxxx Guaranty Trust
Company of New York (the "Custodian"), acting through its office
at 00 xxxxxx xxx Xxxx, Xxxxxxxx, Xxxxxxx, and Xxxxx Xxxxxx
Precious Metals and Minerals Fund (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 (a). 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.
2(b). Massachusetts Business Trust - Limitation of Liability.
The Client and the Custodian agree that the obligations of the
Client under this Agreement shall not be binding upon any of the
Trustees, shareholders, nominees, officers, employees or agents,
whether past, present or future, of the Client, individually, but
are binding only upon the assets and property of the Client, as
provided in the Declaration and Agreement of Trust. The
execution and delivery of this Agreement have been authorized by
the Trustees of the Client, and signed by an authorized officer
of the Client, acting as such, and neither such authorizationby
such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them or any
shareholder of the Client pesonally, but shall bind only the
assets and property of the Client as provided in the Master Trust
Agreement.
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
New York Minerals Fund Inc
By: ______________________________ By:
______________________________
Title: ______________________________ Title:
______________________________
Appendix A
Global Custody Network
Country Subcustodian
Depository1
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)2
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
Turkey3 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
(To be provided)
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.
_______________________________
1In addition to the central bank, if applicable.
2JSA currently does not meet Rule 17-5 requirements.
3Citibank meets the capital requirements of Rule 17f-5 and
Ottoman bank currently does not.
