Terms and conditions.
This Custodian Agreement (this “Agreement”) is made in the day of today
between European Digital Trust KB, a Swedish Trust company having its registered office at Stockholms Brevboxar, 1528 , 11674, Stockholms Sweden.
(hereinafter “WALLEX CUSTODY”) and the client whose information is set forth on the signature page hereto (hereinafter the “CLIENT”)
WHEREAS, the Client wishes to appoint WALLEX CUSTODY to provide custodial services and WALLEX CUSTODY is willing to perform such services on the terms and conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, including the above recitals:
1.1.1 Unless the context requires otherwise, the following terms shall have the following meanings:
“Authorized Person” has the meaning ascribed thereto in Section 3.1;
“Cash Account” has the meaning ascribed thereto in Section 2.1;
“Custody Account” has the meaning ascribed thereto in Section 2.1;
“Custody Assets” has the meaning ascribed thereto in Section 2.2;
“Instructions” has the meaning ascribed thereto in Section 3.2;
“Securities” means any stock, shares, bonds, securities or other similar property [excluding derivatives] (including evidence of securities or title thereto and all rights in respect thereof).
1.2 Words importing one gender only shall include the other and, unless the context otherwise requires, words importing the singular number only shall include the plural and vice versa.
1.3 Words importing persons include companies and associations or bodies of persons whether corporate or unincorporated.
1.4 References to Sections are references to the numbered sections of this Agreement.
1.5 References to statutes are, unless otherwise specified, references to statutes of the Jersey, and include any statutory modifications or re-enactments thereof, or rules promulgated thereunder for the time being in force.
1.6 Section headings are for convenience only and shall not affect the construction hereof.
1.7 References to this “Agreement” are references to this Agreement as from time to time amended, supplemented or restated.
APPOINTMENT OF CUSTODIAN
2.1 The Client authorizes WALLEX CUSTODY (and WALLEX CUSTODY so agrees) to establish and maintain on the terms of this Agreement (i) a custody account or accounts for the deposit of Securities and any other items of property or other assets (the "Custody Account"), and (ii) a cash account or accounts for the deposit or receipt of cash in any currency (the “Cash Account”), in each case, currently held or from time to time received by, transferred to or held to the order or under the direction or control of WALLEX CUSTODY for the account of the Client.
2.2 The Securities, cash, other monies and any other items of property or assets referred to above (the "Custody Assets") shall be held by WALLEX CUSTODY, which shall be responsible for their safekeeping, as custodian for the account of the Client on and subject to the terms of this Agreement.
2.3 The Client agrees and understands that the Securities may be pooled with property of other clients of WALLEX CUSTODY like with like, and the Client's beneficial entitlement therein shall be proportionate to the property deposited with WALLEX CUSTODY by the Client (as increased or diminished by subsequent sales or purchases from time to time). All such accounts shall be marked so as to indicate their trustee or nominee nature.
2.4 WALLEX CUSTODY is authorized to appoint any nominees, agents or sub-custodians, whether in its own name or that of the Client, to perform any of the duties of WALLEX CUSTODY under this Agreement and is entitled to deposit the Custody Assets in or with any depository or clearance system. Any reference in this Agreement to WALLEX CUSTODY shall, where the context so requires, include its nominees, agents or sub-custodians (which term shall also extend to any depository or clearance system) appointed by WALLEX CUSTODY on its behalf. WALLEX CUSTODY shall not be responsible for any act or omission or for the solvency of any nominee, agent or sub- custodian, appointed pursuant to this Section 2.4 hereof, provided that any such person so appointed will be an internationally reputable and creditworthy financial institution.
2.5 Where WALLEX CUSTODY agrees to act as custodian for the Client under the terms of any power of attorney from the Client, each of the provisions of this Agreement, including (without limitation) any indemnity in favor of WALLEX CUSTODY, shall also apply to WALLEX CUSTODY's actions as attorney for the Client, and the Client agrees to ratify and confirm such actions of WALLEX CUSTODY, and to execute such documents and/or do all such other acts and things as WALLEX CUSTODY may require for the purposes of the foregoing.
AUTHORIZED PERSONS AND INSTRUCTIONS
3.1 The Client shall provide WALLEX CUSTODY with a list of such officers, employees, agents or other persons (each an "Authorized Person") of or for the Client as have been authorized, either alone or with others as specified, to act on its behalf in the giving of instructions and/or performance of any acts, discretions or duties under this Agreement, together with specimens of their signatures if written instructions are to be given, and WALLEX CUSTODY shall be entitled to rely upon the continued authority of an Authorized Person to given instructions and so act on behalf of the Client as aforesaid until WALLEX CUSTODY receives written notice from the Client to the contrary.
3.2 WALLEX CUSTODY may act upon instructions ("Instructions") from an Authorized
Person (or otherwise given on behalf of the Client) in such manner as may be agreed by WALLEX CUSTODY and received by WALLEX CUSTODY, in its absolute discretion, via telephone, telex, S.W.I.F.T., facsimile transmission or other teleprocess or electronic instruction system acceptable to WALLEX CUSTODY which shall have been transmitted with such security features as are agreed in writing between the Client and WALLEX CUSTODY and on such terms and conditions as WALLEX CUSTODY may specify, provided that when taking action upon Instructions WALLEX CUSTODY shall act in a reasonable and proper manner unless otherwise instructed, and provided further that (i) Instructions shall continue in full force and effect until cancelled or superseded (except in respect of
Instructions executed by WALLEX CUSTODY which can no longer be cancelled), (ii) if any
Instructions are illegible, unclear and/or ambiguous, WALLEX CUSTODY shall refuse to execute such Instructions until any ambiguity or conflict has been resolved to its satisfaction, (iii) Instructions shall be carried out subject to the rules, operating procedures and market practice of any relevant stock exchange, clearing house, settlement system or market where or through which they are to be executed, and WALLEX CUSTODY may further refuse to execute Instructions if in WALLEX CUSTODY's opinion they are outside the scope of its duties under this Agreement or are contrary to any applicable law, rule or other regulatory requirement (whether arising from any governmental authority, self-regulatory organization or that of a relevant stock exchange, clearing house, settlement system or market as aforesaid), and (iv) WALLEX CUSTODY may rely in the performance of its duties under this Agreement and without liability on its part, upon any Instructions believed by it in good faith to be given by an Authorized Person (or otherwise to have been given on behalf of the Client) and upon any notice, request, consent, certificate or other instrument believed by it in good faith to be genuine and to be signed or furnished by the proper party or parties thereto, including (without limitation) the Client or any Authorized Person.
3.3 Except as otherwise provided in this Agreement, all transactions involving the Custody Assets shall be executed or settled or otherwise carried out solely in accordance with Instructions.
3.4 Except as otherwise agreed by WALLEX CUSTODY, WALLEX CUSTODY shall not be required to take any action to comply with any Instructions or to take any other action hereunder if (i) in the event that payment is to be made on behalf of the Client, there are at the time that such action is to be taken insufficient monies standing to the credit of the Cash Account to cover the costs of such action, or (ii) in the event that Securities are to be delivered to a third party, such Securities are not standing to the credit of the Custody Account, freely available and in deliverable form. Notwithstanding the foregoing and in the absence of an agreed overdraft or other facility between the parties, if the costs of any action to be taken exceed such monies as aforesaid, WALLEX CUSTODY may, in its absolute discretion, advance, for the account of the Client, the amount of the difference in order to settle the cost of such action. The amount of such advance shall be repayable on demand and shall bear interest accruing from the date such advance is made to but excluding the date such advance is prepaid at a per annum rate (after as well as before judgment) customarily charged by WALLEX CUSTODY on similar advances or as from time to time agreed between WALLEX CUSTODY and the Client. Client acknowledges and agrees that such advance is in the absolute and sole discretion of WALLEX CUSTODY and that the occurrence of any such advance on any occasion shall not be construed as a course of business and Client shall not have any expectation of any future advance.
FEES AND EXPENSES; INTEREST
4.1 The Client agrees to pay fees to WALLEX CUSTODY for its services pursuant to this Agreement in the amounts and at the intervals set out in Schedule 1 attached hereto and incorporated herein and to pay WALLEX CUSTODY’s out of pocket or incidental expenses, including (without limitation) reasonable legal fees of WALLEX CUSTODY. WALLEX CUSTODY may upon sixty (60) days written notice adjust and re-adjust the amounts and/or intervals at which such fees are payable, after which period such fees shall be paid in accordance with the relevant notice. Failing timely payment by the Client of the fees and expenses as aforesaid, WALLEX CUSTODY shall have, without prejudice to any other of its rights hereunder or otherwise, full and irrevocable authority firstly to debit the Cash Account, and to the extent of any deficiency in the Cash Account, the Custody Account, in payment of same.
4.2 WALLEX CUSTODY shall not pay interest to the Client on amounts standing to the Cash Account unless so agreed with the Client and then only at the rates and the intervals as agreed from time to time between the Client and WALLEX CUSTODY.
DUTIES OF WALLEX CUSTODY
The duties of WALLEX CUSTODY shall be:
5.1 in the absence of contrary Instructions and without the need for Instructions from the Client (i) to sign any certificates of ownership or other certificates relating to the Custody Assets, (ii) to collect and receive all payments (whether income or capital) and distributions in respect of the Custody Assets, and to take any action necessary and proper, and/or otherwise reasonably incidental in connection with the same, including (without limitation) the presentation of coupons and other interest items, (iii) to make cash disbursements and pay any expenses or other charges incurred in relation to the Custody Assets and the performance by WALLEX CUSTODY of its duties under this Agreement, and to debit the same to the Cash Account, and (iv) as far as reasonably practicable and to the extent actually notified to WALLEX CUSTODY, to notify the Client of all notices, reports and other financial information relating to the Custody Assets received by WALLEX CUSTODY, and to seek Instructions from the Client as to any action to be taken in connection therewith;
5.2 to follow Instructions as to the registration of Securities, and in the absence of such Instructions to register all Securities (other than bearer Securities) in its name or in those of its nominees and/or agents as it shall see fit;
5.3 to follow Instructions as to the application of and movements in the Custody Assets;
5.4 upon receipt of Instructions and as far as reasonably practicable, to exercise subscription, purchase, voting or other similar rights attaching to the Custody Assets;
5.5 in the event of termination of this Agreement, to deliver or transfer the Custody Assets to the Client or to such other person(s) as the Client shall instruct, net only of any outstanding liabilities attaching to the Custody Assets of which WALLEX CUSTODY is or becomes aware and of any fees and expenses owing to WALLEX CUSTODY; and
5.6 to hold the Custody Assets in segregated accounts in its books, to arrange for the Securities to be deposited in its vault or otherwise held by or to its order as it may think proper for the purposes of providing for their safekeeping, and to record the amounts and locations thereof.
DUTIES OF THE CLIENT
6.1 The Client will deliver or cause to be delivered to WALLEX CUSTODY from time to time inter alia, the following: (a) the Securities, which the Client now owns or may hereafter acquire; and
(b ) evidence of ownership of the Securities.
6.2 The Client agrees to provide WALLEX CUSTODY with copies of all documents and other relevant material as WALLEX CUSTODY may require for the performance of its duties hereunder.
REPORTING AND INFORMATION
WALLEX CUSTODY shall provide the Client or its authorized agent with periodic reports, transaction advices and/or statements of accounts relating to the Custody Assets, the dates and depth of reporting level of which shall be as expressly agreed in writing between WALLEX CUSTODY and the Client from time to time. In the absence of the filing with WALLEX CUSTODY by the Client of exceptions or objections to any information, report, statement, confirmation, note or other document within thirty (30) days of the date of receipt thereof, WALLEX CUSTODY shall have no responsibility for any errors or omissions therein and the Client shall be deemed to have approved the contents thereof and accepted responsibility for all of its obligations appearing therein.
NON-EXCLUSIVITY AND OWN ACCOUNT DEALING
The services provided to the Client by WALLEX CUSTODY under this Agreement shall be deemed non-exclusive, and nothing contained in or implied by this Agreement shall be construed so as (i) to prevent WALLEX CUSTODY, its nominees or agents or its or their associated companies, principals, affiliates or employees in any way from purchasing, selling or otherwise dealing in any Securities or other assets (whether forming part of the Custody Assets or not) for its or their own account prior to, simultaneously with, or subsequent to any dealings on behalf of the Client, or (ii) from providing similar services to or entering into similar agreements with any customers or other persons or (iii) to impose any duty of disclosure or liability to account for any profit made by any of them in relation to any of the foregoing.
REPRESENTATIONS AND WARRANTIES
9.1 Each of WALLEX CUSTODY and the Client represents and warrants to the other that:
(unless it is an individual in which case this sub-section shall not apply) it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;
it has the power and authority to execute, deliver and to perform its obligations under this Agreement (and under any other documentation required in connection herewith); and
its obligations under this Agreement (and under any other documentation as aforesaid) constitute its legal, valid and binding obligations.
9.2 The Client further represents and warrants to WALLEX CUSTODY that it is the beneficial owner of the Custody Assets (or otherwise has all necessary authorizations and consents to enable it to deal with the Custody Assets) and, if it is acting as trustee, manager or otherwise in a representative capacity in relation to the Custody Assets, that it is fully empowered to enter into and perform its obligations under this Agreement (and under any other documentation as aforesaid) and to grant the rights and remedies to WALLEX CUSTODY contained herein and therein.
SCOPE OF RESPONSIBILITY AND INDEMNITY
10.1 Subject to the terms hereof WALLEX CUSTODY shall use all reasonable care in the performance of its duties under this Agreement but shall not be responsible for any loss or damage suffered by the Client as a result of WALLEX CUSTODY performing such duties unless the same results from an act of fraud, willful default or gross negligence on the part of WALLEX CUSTODY and in which event the liability of WALLEX CUSTODY in connection with the Custody Assets so affected by WALLEX CUSTODY’s fraud, willful default or gross negligence as aforesaid shall not exceed the market value (as determined by WALLEX CUSTODY in any reasonable commercial manner) of such Custody Assets at the time when such fraud, willful default or gross negligence is notified to the Client.
10.2 WALLEX CUSTODY shall not, other than as stated in Section 10.1 above, be responsible for the title, validity or genuineness of any of the Custody Assets (or any evidence of title thereto) received or delivered by it pursuant to this Agreement or, unless otherwise expressly agreed in writing by WALLEX CUSTODY, for the maintenance of any insurances in respect of the Custody Assets.
10.3 Except as otherwise expressly agreed in writing by WALLEX CUSTODY, the Client shall be responsible for all filings, tax returns and similar reports on any transactions undertaken pursuant to this Agreement or in connection with the Custody Assets which must be made to any relevant authority whether governmental or otherwise and for the payment of all unpaid calls, taxes (including without limitation any valued added tax), imposts, levies or duties, or any other liability or payment arising out of or in connection with the Custody Assets, and in so far as WALLEX CUSTODY is under any obligation (whether of a governmental nature or otherwise) to pay the same on behalf of the Client it may do so without Instructions from the Client firstly by debit to the Cash Account, and to the extent of any deficiency in the Cash Account, out of the Custody Account.
10.4 WALLEX CUSTODY is not acting under this Agreement as manager or investment adviser to the Client, and responsibility for the selection, acquisition and disposal of the Custody Assets remains with the Client at all times. WALLEX CUSTODY shall have no obligation to explain or warn of any risks taken or to be taken by the Client.
10.5 WALLEX CUSTODY shall, except as stated in Section 10.1 above, have no responsibility for and shall not be liable for losses incurred by the Client caused by or resulting from any of the following:
delay in the actual receipt by WALLEX CUSTODY of Instructions from the Client relating to any payment, redemption or other transaction, or delay in the actual receipt of such payment or in the actual occurrence of such redemption or transaction, relating to cash and/ or Securities forming or to form part of the Custody Assets and effected or to be effected hereunder;
loss or damage to, or theft of, any part of the Custody Assets held and/or administered by or under the direction or control of any nominee or agent of WALLEX CUSTODY (or by any third party instructed by or through it or any such nominee or agent), the acts of omissions of such a nominee or agent (or any third party as aforesaid), or the bankruptcy, liquidation, winding up or similar act of or by such a nominee or agent (or any third party as aforesaid), provided that WALLEX CUSTODY has exercised all reasonable care in selecting the relevant nominee or agent; and
any event of force majeure or other event beyond WALLEX CUSTODY’s reasonable control, including but not limited to nationalization, expropriation, currency restrictions, acts of state or acts of god, labor disturbances among staff of WALLEX CUSTODY or of its nominees or agents (or of any third parties instructed by or through it or any such nominees or agents), power failures or breakdowns in communications links or equipment of WALLEX CUSTODY or of its nominees or agents (or of any third parties as aforesaid), or the failure or disruption of any relevant stock exchange, clearing house, settlement system or market,
provided that and without prejudice to the foregoing, WALLEX CUSTODY shall use all reasonable efforts to assist the Client in avoiding, minimizing or mitigating such losses as aforesaid.
10.6 WALLEX CUSTODY shall be indemnified by the Client against any liabilities, losses, damages, costs and expenses (including but not limited to legal fees) incurred by WALLEX CUSTODY and arising out of any action taken or omitted to be taken by WALLEX CUSTODY hereunder or pursuant to any Instructions, including but not limited to (i) any taxes or other governmental charges, and any expenses related thereto, which may be imposed or assessed with respect to the Custody Assets, and/or (ii) WALLEX CUSTODY or any nominee or agent of WALLEX CUSTODY, appearing as holder or holder of record of the Custody Assets or any part thereof, but excluding those liabilities, losses, damages, costs and expenses which arise (whether through act or omission) as the result of fraud, willful default or gross negligence on the part of WALLEX CUSTODY in the performance of its duties under this Agreement.
Notwithstanding any provision of this Agreement to the contrary, but subject to the provisions of Section 19 below, where WALLEX CUSTODY is for the time being subject to any regulatory requirements (whether made by the Government of JERSEY or otherwise) in relation to its dealings with the Client under this Agreement, the rights and obligations of WALLEX CUSTODY under the provisions of this Agreement shall be read and construed to the greatest extent permitted by, and in accordance with such applicable regulatory requirements.
TERM AND TERMINATION
12.1 This Agreement shall commence on the date first above written and shall continue until terminated in accordance with the provisions of Section 12.2
12.2 Except as otherwise provided in this Agreement, the Client or WALLEX CUSTODY may terminate the obligations of WALLEX CUSTODY upon ninety (90) days’ prior written notice to the other.
12.3 If notice of termination is given by WALLEX CUSTODY, the Client shall, within thirty (30) days following the receipt of such notice, deliver a written notice to WALLEX CUSTODY specifying the names of the persons to whom WALLEX CUSTODY shall (at the cost and expense of the Client, and by such method(s) and/or to such location(s) as the parties may agree) deliver or transfer the Custody Assets.
12.4 WALLEX CUSTODY shall not be under any obligation to deliver or transfer the Custody Assets to the persons specified as aforesaid, until payment of all amounts which WALLEX CUSTODY determines to be owed to it hereunder has been made.
12.5 WALLEX CUSTODY shall be entitled to receive fees as provided for herein until the moment of actual delivery or transfer of the Custody Assets to the persons specified as aforesaid.
The Client and WALLEX CUSTODY agree to use their reasonable efforts to keep confidential any information that either of them may receive in relation to the Agreement, provided, however, each party agrees and understands that the other may disclose such information if required to do so by any applicable law, statute or other regulation of or by way of court order or similar process enforceable in any relevant jurisdiction or if required to do so by any regulatory body or self-regulatory organization (whether of a governmental nature or otherwise) in any relevant jurisdiction and to whose authority the relevant party is (whether or not through force of law) subject or otherwise accustomed to act.
SUCCESSORS AND ASSIGNMENT
This Agreement shall bind and inure for the benefit of the parties hereto and their respective successors, provided that neither party may assign, transfer or charge any of its rights and benefits hereunder without the prior written consent of the other party.
15.1 Except as otherwise provided in this Agreement, all requests, demands or other communications between the parties or notices provided in connection herewith, including but not limited to Instructions, shall be in writing, hand delivered or sent by first class (prepaid) post or airmail, telex, S.W.I.F.T., facsimile or such other means as may from time to time be expressly agreed in writing between the Client and WALLEX CUSTODY, addressed to the address or S.W.I.F.T. address or telex or facsimile number furnished from time to time by the relevant addressee to the other party.
15.2 All requests, demands or other communications or notices as aforesaid shall be deemed effective, if hand delivered, upon delivery, if sent by first class (prepaid) post or airmail, 10 days after being posted (but in the case of any requests, demands or other communications or notices, including but not limited to Instructions, being given to WALLEX CUSTODY, only upon receipt thereof by WALLEX CUSTODY), if sent by telex, upon receipt of answer back confirmation, if sent by S.W.I.F.T., when acknowledged by S.W.I.F.T., and if sent by facsimile, when sent.
This Agreement may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.
This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior oral communications and other written agreements between them.
No amendment, modification or waiver in respect of this Agreement will be effective unless in writing and executed by each of the parties hereto.
This Agreement and any Instructions given hereunder shall be governed by and construed in accordance with the laws of Sweden.
20.1 Each party agrees for the benefit of the other, but without prejudice to the right of any party to take any proceedings in relation hereto before any other court of competent jurisdiction that the courts of Sweden shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Agreement and any Instructions given hereunder and, for such purposes, irrevocably submits to the jurisdiction of such courts.
20.2 Each party further irrevocably waives any objection that it may have or be entitled to claim at any time to the commencement of any such suit, action or proceeding before such courts, or that any such suit, action or proceeding has been brought in an inconvenient forum, or to the enforcement of any judgment in respect thereof over any of its assets or property (including without limitation, the Custody Assets) in any jurisdiction.