CUSTODIAN CONTRACT, 관리 계약서, 영문 계약서

 

CUSTODIAN CONTRACT

 

 

For

 

[Customer]

 

 

 

BETWEEN

 

 

[Trustee]

 

 

AND

 

 

[Custodian]

 

 

AND

 

 

[Investment Manager]

 

 

 

DATED [•], 20[•]

 

TABLE OF CONTENTS

 

Page

1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT. ···· 1

2. DUTIES OF CUSTODIAN WITH RESPECT TO PROPERTY HIELD BY CUSTODIAN. ··············································································· 1

3. SETTLEMENT CLAUSE. ·································································· 5

4. REPORTING. ················································································· 6

5. COMPUTERIZED REPORTING SERVICES. ············································6. 6. COMPENSATION OF CUSTODIAN. ···················································· 7

7. RESPONSIBILITY OF CUSTODIAN. ·················································· 8

8. SECURITY CODES. ······································································· 9

9. TAX LAW. ··················································································· 10

10. INVESTMENT MANAGER. ··························································· 10

11. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT. ·················· 10

12. ACTION ON TERMINATION. ························································· 11

13. REPRESENTATIONS AND WARRANTIES. ········································ 11

14. NOTICES. ·················································································· 12

15. PROXY. ····················································································· 13

16. GOVERNING LAW AND JURISDICTION. ········································· 13

 

 

 

 

 

 

 

CUSTODIAN CONTRACT

 

 

  This Contract between [•] AS TRUSTEE FOR [•], hereinafter called the “Customer”, and [•], a trust company organized under the laws of [Name of the Country], having its principal place of business at [•], hereinafter called the “Custodian”.

 

WITNESSETH:

 

  That in consideration of the mutual covenants and agreements contained herein the Customer and the Custodian agree as follows:

 

1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT.

 

  The Customer hereby employs the Custodian as the custodian of certain assets belonging to the Customer or to clients of the Customer, hereinafter identified as the “Accounts”. The Custodian shall not be responsible for any property of the Customer or the Customer’s clients not received by the Custodian, its agents or its subcustodians as provided herein.

 

2. DUTIES OF CUSTODIAN WITH RESPECT TO PROPERTY HELD BY CUSTODIAN.

 

2.1 Holding Securities.

The Custodian shall hold and segregate from its own property, or direct its agents or its subcustodians to so hold and segregate, for the Accounts, all securities and other noncash property, other than securities which are held for the Accounts by the Custodian or its agents or subcustodians in a clearing agency which acts as a securities depository or in another book-entry system for the central handling of securities, collectively referred to herein as “Securities System”, or securities maintained in one or more omnibus accounts at the Custodian, its agents or subcustodians.

 

2.2 Delivery of Securities.

The Custodian, upon receipt of Proper Instructions, shall release and deliver, or direct its agents or its subcustodians to release and deliver, securities of the Accounts held by the Custodian, its agents or its subcustodians or maintained by them in a Securities System.

 

2.3 Registration of Securities.

  Securities held by the Custodian, its agents or its subcustodians (other than bearer securities or securities held in a Securities System) may be registered in the name of the Custodian or in the name of any nominee of the Custodian or in the name of any of any nominee of the Custodian or in the name of any of its agents or its subcustodians or of their nominee, or in the name of the Customer. The Custodian, its agents and its subcustodians shall not be obligated to accept securities on behalf of the Accounts under the terms of this Contract unless such securities are in good delivery form.

 

2.4 Bank Accounts.

  The Custodian, its agents or its subcustodians may open and maintain one or more accounts in the name of the Custodian or otherwise, in such banks, trust companies, or deposit taking institutions and upon such terms, as they may, in their discretion, deem advisable, including the Custodian, the subcustodians, or any affiliates of the Custodian or the subcustodians, subject only to draft or order by the Custodian, its agents or its subcustodians acting pursuant to the terms of this Contract. The Custodian shall hold in such account or accounts, subject to the provisions hereof, cash received by or from or for the Accounts, and shall be under no duty of disclosure or accounting to the Customer or the Accounts with regard to the earnings on the investment of such cash, other than interest at the stated rate, if any, paid on such account.

 

2.5 Foreign Exchange.

  Upon the receipt of Proper Instructions, the Custodian, its agents or its subcustodians may enter into all types of contracts for foreign exchange on behalf of the Customer or the Accounts, including transactions entered into with the Custodian, its subcustodians or any affiliates of the Custodian or the subcustodians, and shall have no obligation to disclose or account to the Customer for any commissions or earning made on such transactions.

 

2.6 Collection of Income.

The Custodian, its agents or its subcustodians shall credit all income and other payments received by them with respect to the securities held hereunder to the Accounts. The collection of income due to the Accounts on securities loaned by the Accounts, other than through participation in securities lending programs sponsored by the Custodian or its affiliates, shall be the responsibility of the Customer.

 

2.7 Payment of Account Moneys.

  Upon receipt of Proper Instructions, the Custodian shall pay out or direct its agents or its subcustodians to pay out, money from the Accounts.

 

2.8 Appointment of Agents and Subcustodians.

  The Custodian may at its discretion appoint and remove agents or subcustodians to carry out such of the provisions of this Contract as the Custodian may from time to time direct.

 

2.9 Proxies.

The Custodian will act in accordance with Proper Instructions with regard to proxies received by the Custodian form its agents or its subcustodians or from issuers of the securities being held for the Accounts. In the absence of such Proper Instructions, or in the event that such Proper Instructions are not received in a timely fashion, the Custodian shall be under no duty to act with regard to such proxies.

 

2.10 Communications Relating to Accounts Securities

The Custodians shall make reasonable efforts to transmit to the Customer or Investment Manager written information received by the Custodian form its agents or its subcustodians or from issuers of the securities being held for the Accounts or from the party (or its agents) making any cash or exchange offer. The Custodian shall not be liable for any untimely exercise of any tender, exchange or other right or power in connection with securities or other property of the Accounts at any time held by it unless (i) it or its agents or subcustodians, are in actual possession or such securities or property and (ii) it receives Proper Instructions with regard to the exercise of any such right or power and both (i) and (ii) occur at least [•] business days prior to the date on which the Custodians is to take action to exercise such right or power.

 

2.11 Proper Instructions.

The term “Proper Instructions” shall mean instructions (including standing instructions) received by the Custodian from the Customer, the Investment Manager, or any person duly authorized by either of them. Such instructions may be in writing signed by the authorized person or may be in a tested communication or in a communication utilizing access codes effected between electro-mechanical or electronic devices or may be by such other means as may be agreed to from time to time by the Custodian and the party giving such instructions. The Customer shall cause its duly authorized officer, or the duly authorized officer of any Investment Manager, to certify to the Custodian in writing the names and specimen signatures of persons authorized to give proper Instructions. The Custodian shall be entitled to rely upon the identity and authority of such persons until it receives notice from the Customer or the Investment Manager to the contrary.

 

Upon any acquisition or disposal or other dealing in the securities or other property of the Accounts and upon every delivery or transfer of any property to the Custodian, and where the Custodian shall be requested to distribute or otherwise deal with any property, the Customer, the Investment Managers or their representatives shall specify where relevant the following items:

 

(a)         Dealing date:

(b)         Whether sale or purchase or, if another type of transaction, details of the same;

(c)         Descriptions of the property in questions;

(d)         Quantity;

(e)         Price per unit;

(f)         Amount of money to be received or delivered;

(g)         Currency information;

(h)                      Name of the stockbrokers and other persons, firms or companies concerned with the execution of the purchase, sale or other transactions;

(i)          Settlement date; and

(j)          Ant other relevant details.

 

The Custodian shall have no obligation to act on any instructions purported to be given which do not specify any of the above, but the provisions of this Contract shall apply in the event that the Custodian decides to act upon such purported instructions, and such instructions shall be considered Proper Instructions for purposes of this Contract. The Custodian shall have no obligation to act in accordance with purported instructions to the extent that they conflict with applicable law or regulations, market practice or the Custodian’s operating policies and practices; provided, however, that, the Custodian shall notify the Customer of the reasons of its non-compliance.

 

2.12 Actions Permitted without Express Authority.

  The Custodian may, at its discretion, without express authority from the Customer or the Investment Manager attend to all nondiscretionary details in connection with the sale, exchange, substitution, purchase, transfer and other dealings with the securities and property of the Accounts.

 

2.13 Evidence of Authority.

  The Custodian shall be protected in acting upon any instruction, notice, request, consent, certificate, instrument or paper reasonably believed by it to be genuine and to have been properly executed or otherwise given by or on behalf of the Customer or an Investment Manager.

 

2.14 Securities Lending Programs.

  When directed in writing by the Customer, the Custodian shall participate in securities lending programs sponsored by the Custodian or any affiliate of the Custodian pursuant to the terms of a securities lending authorization agreement between the Customer and the Custodian, or such affiliates.

 

3. SETTLEAENT CLAUSE.

 

3.1 Subject to 3.2 and 3.3 below the Custodian shall credit or debit the appropriate cash account of the Customer in connection with the purchase, sale, maturity, redemption, income, dividends or other disposition of securities and other assets held for the time being on behalf of the Customer in said accounts on an actual settlement basis.

 

3.2 The Custodian may make available the provisional credit of settlement, maturity redemption proceeds, income and dividends on a contractual settlement basis in markets deemed appropriate for such a practice by the Custodian. The Custodian reserves the right to reverse any such crediting at any time before actual receipt of the item associated with the credit when the Custodian determines that actual receipt will not be received in due course for such an item. In such instances, the Custodian may charge the appropriate cash account of the Customer for the expense of providing funds associated with such advance in an amount not to exceed a commercially reasonable rate.

 

3.3 In markets where the Custodian makes available the provisions of Section 3.2, the consideration payable in connection with a purchase transaction shall be debited from the appropriate cash account of the Customer upon the contractual settlement date for the relevant purchase transaction. The Custodian shall promptly recredit such amount at the time that the Customer notifies the Custodian by Proper Instruction that such transaction has been cancelled.

 

 

3.4 All payments made under this Section are made subject to actual collection. The Custodian shall not be liable to the Customer for any amount that is not actually collected in connection with the terms of this Contract. The provisions of this Section are intended to facilitate settlement in ordinary course. The Custodian may terminate or suspend any part of this Section immediately upon notice to the Customer, particularly in the event of force majeure affecting settlement, disorder in markets or other changed external business circumstances. Any provisional credits provided under this Section shall be considered an advance of cash for purposes of the third paragraph of Section 7 of this Contract.

 

4. REPORTING.

 

The Custodian shall render to the Customer, and with copies to the Investment Manager appointed by the Customer, a monthly report of all monies received or paid on behalf of the Accounts and an itemized statement of the securities for which it is accountable under this Contract as of the end of each month, a list of all securities transactions that remain unsettled at that time and such other reports as the parties shall agree from time to time.

 

5. COMPUTERIZED REPORTING SERVICES.

 

5.1 Protection of Equipment, Confidential or Proprietary Programs and Information.

 

  The Customer agrees to use the equipment, computer programs and other information supplied by the Custodian under this Contract solely for its own internal use and benefit and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or organization without prior written approval of the Custodian.

 

  The Customer acknowledges that the databases, computer program, screen formats, screen designs, report formats, interactive design techniques, and other information furnished to the Customer by the Custodian constitute copyrighted trade secrets or proprietary information of substantial value to the Custodian. Such databases, programs and other information are collectively referred to below as “Proprietary Information”. The Customer agrees that it shall treat all Proprietary Information as proprietary to the Custodian and that it shall not divulge any Proprietary Information to any person or organization except as expressly permitted hereunder. Without limiting the foregoing, the Customer agrees for itself and its employees and agents:

(a)         to use such programs and databases (i) solely on the Customer’s computers, (ii) solely form equipment at the Customer’s locations agreed to between the Customer and the Custodian and (iii) solely in accordance with the Custodian’s applicable user documentation;

 

(b)         to use equipment supplied by the Custodian solely with programs supplied by the Custodian and no other programs or software;

 

(c)         to refrain form copying or duplicating in any way (other than in the normal course of performing processing on the Custodian’s computers) any part of any proprietary Information;

 

(d)         to refrain from obtaining unauthorized access to any programs, data or other information not owned by the Customer, and if such access is accidentally obtained, to respect and safeguard the same as Proprietary Information;

 

(e)         to refrain from causing or allowing information transmitted from the Custodian’s computer to the Customer’s terminals to be retransmitted to another computer, terminal or other device;

 

(f)         that the Customer shall have access to only those authorized transactions as agreed to between the Customer and the Custodian; and

 

(g)         to honor reasonable written requests made by the Custodian to protect at the Custodian’s expense the rights of the Custodian in Proprietary Information at common law, under the copyright statues, other statutes and the laws of countries and territories other than the United States.

 

5.2 Customer Acknowledgement.

  The Customer hereby acknowledges that the data and information that will be accessed by the Custodian is unaudited and may not be complete or accurate due to inaccurate pricing of securities, delays of a day or more in updating the Accounts and other causes for which the Custodian will not be liable to the Customer or the Accounts.

 

6. COMPENSATION OF CUSTODIAN.

 

The Custodian shall be entitled to compensation for its services and expenses as the Custodian set forth in a written Fee Schedule between the parties hereto until a different compensation shall be in writing agreed upon between the Customer and the Custodian.

7. RESPONSIBILITY OF CUSTODIAN

 

The Custodian shall act as a professional bailee for hire, and shall have fiduciary duty in the performance of its obligations under this Contract. The Custodian shall be responsible only for the performance of the duties set forth in this Contract as the same are carried out in accordance with what the Custodian reasonably believes to be market practice or otherwise in accordance with its operating policies and procedures. So long as and to the extent that it is under fiduciary duty, the Custodian shall not be responsible for the title, validity or genuineness, including good deliverable form, of any property or evidence of title thereto received by it or delivered by it pursuant to this Contract and shall be held harmless in acting upon any notice, request, consent, certificate or instrument reasonably believed by it to be genuine and to be signed or otherwise given by the proper party or parties. The Custodian shall be kept indemnified by the Customer for any and all expenses, losses, claims, actions, liabilities, suits or proceedings which may arise in connection with the property held hereunder or otherwise in connection with this Contract, provided that the same has not arisen out of the Custodian’s gross negligence or willful misconduct.

 

Without prejudice to the generality of the foregoing, the Custodian shall be without liability to the Accounts or the Customer for any loss resulting from or caused by: (i) events or circumstances beyond its reasonable control (ii) errors by the Customer or any Investment Manager in its instructions to the Custodian (iii) failure by the Customer or any Investment Management to adhere to the Custodian’s operational policies and procedures or (iv) acts, omissions or insolvency of a Securities System; provided, however, that the Custodian shall immediately notify the Customer of the foregoing in good faith and help the Customer to take corrective measures. The Custodian shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Accounts or the Customer) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event of any dispute or conflicting claims by any person or persons with respect to securities or other property held for the Accounts, the Custodian shall be entitled to refuse to act until either: (i) such dispute or conflicting claims shall have been finally determined by a court of competent jurisdiction or settled by agreement between conflicting parties, and the Custodian shall have received written evidence satisfactory to it such determination or agreement; or (ii) the Custodian shall have received an indemnity, security or both satisfactory to it and sufficient to hold it harmless from and against any and all loss, liability and expense which the Custodian may incur as a result of its actions.

 

If the Custodian advances cash or securities for any purpose or in the event that the Custodian shall incur or be assessed other liabilities upon it tin connection with this Contract, except such as may arise from its own failure to do fiduciary duty in the performance of its obligations hereunder, any property at any time held for the account of the Customer or of the Accounts shall be security therefore and shall be subject to a right of set-off thereon to the extent that it has an apparent connection with the cash or  securities advanced by the Custodian, and should the Customer fail to repay the  Custodian within [•] business days after the receipt of demand, the Custodian shall be entitled to utilize available cash and to dispose of the assets of the Customer or of the Accounts, in a manner, at a time and at a price which the Custodian deems proper and appropriate, and the vouchers or explanations of which the Custodian shall notify to the Customer, to the extent necessary to make itself whole.

 

The Custodian may employ, directly or indirectly, (and may at any time cease to employ) one or more subcustodians to assist in the performance of its obligations hereunder, provided, however, that the employment of any such subcustodian (other than any such subcustodian which is a securities depository or clearing agency) shall not relieve the Custodian of its responsibilities or liabilities hereunder, provided further, that with respect to a subcustodian which is a securities depository or clearing agency the Custodian shall only be responsible or liable for losses arising from such employment caused by the Custodian’s own failure to exercise reasonable care in appointing and supervising the subcustodian. 

 

8. SECURITY CODES.

 

  If the Custodian has issued to the Customer, or to any Investment Manager, security codes, passwords, or test keys in order that the Custodian may verify that certain transmissions of information, including Proper Instructions, have been originated by the Customer or the Investment Manager, as the case may be, the Custodian shall be kept indemnified by and be without liability to the Accounts and the Customer for any action taken or omitted by it in reliance upon receipt by the Custodian of transmissions of information with the proper security code or password, including instructions purporting to be Proper Instructions, which the Custodian reasonably believes to be from the Customer or Investment Manager. The Customer shall, and shall procure that any Investment Manager shall, safeguard any security codes, passwords, test keys or other security devices which the Custodian shall make available.

9. TAX LAW.

 

The Custodian shall have no responsibility or liability for any obligations now or hereafter imposed on the Customer, the Accounts or the Custodian as custodian of the Accounts by tax law of [Name of the Country] or of any country. The sole responsibility of the Custodian with regard to such tax law shall be to use reasonable efforts to assist the Customer with respect to any claim for exemption or refund under the tax law of jurisdiction for which the Customer has provided appropriate tax information.

 

10. INVESTMENT MANAGER.

 

10.1 Appointment and Termination of Appointment.

The Customer at any time may appoint one or more Investment Managers to manage the investment of all or any portion of the Accounts. In such event, the Customer promptly shall notify the Custodian n writing of the appointment of such Investment Manager, and of the portion of the Accounts over which the Investment Manager may exercise its authority. The Customer similarly promptly shall notify the Custodian of the termination of the appointment of any Investment Manager.

 

10.2 Authority.

The Custodian, in performing its duties under this Contract, shall be entitled to rely upon Proper Instructions from the Investment Manager, with such limitations as the Customer and the Custodian by written agreement provided. In the absence of such limitations, the Custodian shall be entitled to accept Proper Instructions from the Investment Manager upon the assumption that the Investment Manager may exercise full discretion with regard to all matters under this Contract.

 

11. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT.

 

This Contract shall become effective as of the date hereinafter set forth, shall continue in full force and effect until terminated as hereinafter provided, may be amended at any time by mutual written agreement of the parties hereto and may be terminated by either the Customer or the Custodian by an instrument in writing delivered or mailed, postage prepaid to the other party, such termination to take effect not sooner than ninety days after the data of such delivery or mailing unless a different period is agreed to in writing by the parties. The provisions of Sections 5, 7, 8 and 9 of this Contract shall survive termination of this Contract for any reason. Upon termination of the Contract, the Customer the receipt of demand such compensation as may be due as of the date of such termination and shall likewise reimburse the Custodian for its costs, expenses and disbursements.

 

12. ACTION ON TERMINATION.

 

In the event that securities, funds and other property remain in the possession of the Custodian, its agents or its subcustodians after the date of termination hereof owing to failure of the Customer to appoint a successor custodian or to give Proper Instructions with regard to such assets, the Custodian may cause such property to be delivered to the Customer at the Customer’s sole risk and expense. The Custodian shall be entitled to fair compensation for its services and payment of all expenses incurred during such period as the Custodian retains possession of such securities, funds and other property after termination of this Contract. Such compensation and expenses shall in no event be less than those to which the Custodian is entitled under this Contract.

 

13. REPRESENTATIONS AND WARRANTIES.

 

  The Customer represents and warrants to the Custodian that:

 

(a)         the Customer has the power to enter into and perform its obligations under this Contract, and has duly executed this Contract so as to continue valid and binding obligations of the Customer and of any clients of the Customer whose assets may constitute the Accounts.

 

(b)         The Customer has the power pursuant to any documents establishing the Accounts, including any contracts or agreements with its clients, and any related laws and regulations to enter into this Contract, to grant to the Custodian the rights against assets of the Accounts provided hereunder, and to carry out its obligations hereunder.

 

(c)         In giving any instructions which purport to be “Proper Instructions” under this Contract, the Customer will act, and will cause any Investment Managers to act, in accordance with the provisions of all contracts and agreements governing the assets which constitute the Accounts and any related laws and regulations.

 

The Customer shall, as and when requested by the Custodian, provide the Custodian with a legal opinion of the Chief Legal Officer of the Customer satisfactory to the Custodian in connection with the warranties set out in paragraphs 13(a) and 13(b).

 

14. NOTICES.

 

  Notice and other writings shall be delivered or mailed postage prepaid to:

 

To the Customer:

 

To the Investment Manager:

 

To the Custodian : [Custodian]

 

or to such other address as the Customer or the Custodian may hereafter specify in writing.

 

Telephone and facsimile notices shall be sufficient if communicated to the party entitled to receive such notice at the following numbers:

 

If to the Customer:

 

 Telephone : [•]

 

 Facsimile : [•]

 

If to the Investment Manager:

 

 Telephone : [•]

 

 Facsimile : [•]

 

If to the Customer:

 Telephone : [•]

 

 Facsimile : [•]

 

or to such numbers as either party may furnish the other party by written notice under this Section.

 

 

15. PROXY

 

The Customer does hereby irrevocably appoint the Custodian or any of its directors, officers or employees (from time to time duly appointed or authorized in writing by the Custodian for the purposes herein, the certificate of the Custodian of such appointment to be final and conclusive) to be the Customer’s attorney or attorneys for and in the name of the Customer or otherwise, with full powers of substitution from time to time, for each and all of the purposes hereunder, to sign and execute all documents and perform all acts and things the Custodian considers expedient or necessary for any of the purposes hereunder, and in that respect to employ pay agents and generally to secure any appropriate assistance which the Custodian may consider necessary for the purposes of this Contract.

The Customer does hereby declare that each and every receipt, deed, matter and thing which shall be given, made, executed or done by the attorney for the purposes hereunder shall be as good, valid and effectual to all intents and purposes as if the same had been signed, sealed, delivered, given, made, or done by the Customer.

 

16. GOVERNING LAW AND JURISDICTION.

 

  This Contract shall be construed and the provisions thereof interpreted under and in accordance with laws of [Name of the Country]. The Customer hereby submits to the nonexclusive jurisdiction of the [•] courts including any appellate courts thereof.

 

IN WITNESS WHEREOF, each of the parties has caused this instrument to be executed in its name and behalf by its duly authorized representative(s).

 

 

Accepted:

For and on behalf of

[CUSTODIAN]

 

                    

NAME : [•]

TITLE : [•]

DATE : [•]

 

 

Accepted:

For and on behalf of

[CUSTOMER]

 

                    

NAME : [•]

TITLE : [•]

DATE : [•]

 

 

Accepted:

For and on behalf of

[INVESTMENT MANAGER]

 

                    

NAME : [•]

TITLE : [•]

DATE : [•]

2 Custodian Contract.doc