EXHIBIT 8.2
AGREEMENT BETWEEN
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
AND
THE PHOENIX EDGE SERIES FUND
AGREEMENT BETWEEN
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
AND
THE PHOENIX EDGE SERIES FUND
TABLE OF CONTENTS
1. Employment of Custodian 1
2. Powers and Duties of the Custodian
with respect to Property of the Fund
held by the Custodian 1
2.1 Safekeeping 2
2.2 Manner of Holding Securities 2
2.3 Registration 2
2.4 Purchases 2
2.5 Exchanges 4
2.6 Sales of Securities 4
2.7 Depositary Receipts 5
2.8 Exercise of Rights; Tender Offers 5
2.9 Stock Dividends, Rights, Etc. 6
2.10 Options 6
2.11 Borrowings 7
2.12 Demand Deposit Bank Accounts 7
2.13 Interest Bearing Call or Time Deposits 8
2.14 Futures Contracts 9
2.15 Foreian Exchange Transactions 10
2.16 Stock Loans 11
2.17 Collections 12
2.18 Dividends, Distributions and Redemptions 12
2.19 Proxies, Notices, Etc. 13
2.20 Nondiscretionary Details 13
2.21 Bills 14
2.22 Deposit of Fund Assets in Securities Systems 14
2.23 Other Transfers 16
2.24 Investment Limitations 16
2.25 Custodian Advances 17
2.26 Restricted Securities 18
2.27 Proper Instructions 19
2.28 Segregated Account 20
3. Powers and Duties of the Custodian with
Respect to the Appointment of Subcustodians 21
4. Assistance by the Custodian as to Certain Matters 25
5. Powers and Duties of the Custodian with
Respect to its Role as Recordkeeping Agent 25
5.1 Records 25
5.2 Accounts 25
5.3 Access to Records 25
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6. Standard of Care and Related Matters 26
6.1 Liability of the Custodian with
Respect to Proper Instructions;
Evidence of Authority; Etc. 26
6.2 Liability of the Custodian with
Respect to Use of Securities Systems
and Foreign Depositories 27
6.3 Standard of Care; Liability;
Indemnification 27
6.4 Reimbursement of Disbursements, Etc. 29
6.5 Security for Obligations to Custodian 29
6.6 Appointment of Agents 30
6.7 Powers of Attorney 30
7. Compensation of the Custodian 30
8. Termination; Successor Custodian 30
9. Amendment 31
10. Governing Law 32
11. Notices 32
12. Binding Effect 32
13. Counterparts 32
14. Miscellaneous 33
CUSTODIAN AGREEMENT
AGREEMENT made this __8th__ day of __August__, 1994, between
THE PHOENIX EDGE SERIES FUND (for the International Series) (the "Fund")
and ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. (the "Custodian");
WITNESSETH: That in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT OF CUSTODIAN: The Fund hereby employs and appoints
the Custodian as a custodian for the term and subject to the provisions of this
Agreement. The Custodian shall not be under any duty or obligation to require
the Fund to deliver to it any securities or funds owned by the Fund and shall
have no responsibility or liability for or on account of securities or funds not
so delivered. The Fund will deposit with the Custodian copies of the Declaration
of Trust or Certificate of Incorporation and By-Laws (or comparable documents)
of the Fund and all amendments thereto, and copies of such votes and other
proceedings of the Fund as may be necessary for or convenient to the Custodian
in the performance of its duties.
2. POWERS AND DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE
FUND HELD BY THE CUSTODIAN: Except for securities and funds held by any
Subcustodians appointed pursuant to the provisions of Section 3 hereof or held
by any Foreign Depositories (as said term is defined in Section 3) utilized by a
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Subcustodian, the Custodian shall have and perform the following powers and
duties:
2.1 SAFEKEEPING - To keep safely the securities and other assets of
the Fund that have been delivered to the Custodian and, on behalf of the Fund,
from time to time to receive delivery of securities for safekeeping.
2.2 MANNER OF HOLDING SECURITIES - To hold securities of the Fund (1)
by physical possession of the share certificates or other instruments
representing such securities in registered or bearer form, or (2) in book-entry
form by a Securities System (as said term is defined in Section 2.22) or a
Foreign Depository.
2.3 REGISTRATION - To hold registered securities of the Fund, with or
without any indication of fiduciary capacity, provided that securities are held
in an account of the Custodian containing only assets of the Fund or only assets
held as fiduciary or custodian for customers.
2.4 PURCHASES - Upon receipt of Proper Instructions, as defined in
Section 2.27, insofar as funds are available for the purpose, to pay for and
receive securities purchased for the account of the Fund, payment being made
only upon receipt of the securities (1) by the Custodian, or (2) by a clearing
corporation of a national securities exchange of which the Custodian is a
member, or (3) by a Securities System or a Foreign Depository. However, (i) in
the case of repurchase agreements entered into by the Fund, the Custodian (as
well as an Agent) may release funds to a Securities System, a Foreign Depository
or a Subcustodian prior to the receipt of advice from the Securities System,
Foreign Depository or Subcustodian that the securities underlying such
repurchase agreement have been
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transferred by book entry into the Account (as defined in Section 2.22) of the
Custodian (or such Agent) maintained with such Securities System or to the
Foreign Depository or Subcustodian, so long as such payment instructions to the
Securities System, Foreign Depository or Subcustodian include a requirement that
delivery is only against payment for securities, (ii) in the case of foreign
exchange contracts, options, time deposits, call account deposits, currency
deposits, and other deposits, contracts or options pursuant to Sections 2.10,
2.12, 2.13, 2.14 and 2.15, the Custodian may make payment therefor without
receiving an instrument evidencing said deposit, contract or option so long as
such payment instructions detail specific securities to be acquired, and (iii)
in the case of securities as to which payment for the security and receipt of
the instrument evidencing the security are under generally accepted trade
practice or the terms of the instrument representing the security expected to
take place in different locations or through separate parties, such as
commercial paper which is indexed to foreign currency exchange rates,
derivatives and similar securities, the Custodian may make payment for such
securities prior to receipt thereof in accordance with such generally accepted
trade practice or the terms of the instrument representing such security.
Except as specifically permitted in this Agreement or as authorized or
permitted in Proper Instructions, in any and every case where payment for
purchase of domestic securities for the Fund is made by the Custodian in advance
of receipt of the securities, the Custodian shall be liable to the Fund for such
securities to the same extent as if the securities had been received by the
Custodian.
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2.5 EXCHANGES - Upon receipt of proper instructions, to exchange
securities held by it for the account of the Fund for other securities in
connection with any reorganization, recapitalization, split-up of shares, change
of par value, conversion or other event relating to the securities or the issuer
of such securities and to deposit any such securities in accordance with the
terms of any reorganization or protective plan. Without proper instructions, the
Custodian may surrender securities in temporary form for definitive securities,
may surrender securities for transfer into an account as permitted in Section
2.3, and may surrender securities for a different number of certificates or
instruments representing the same number of shares or same principal amount of
indebtedness, provided the securities to be issued are to be delivered to the
Custodian.
2.6 SALES OF SECURITIES - Upon receipt of proper instructions, to
make delivery of securities which have been sold for the account of the Fund,
but only against payment therefor (1) in cash, by a certified check, bank
cashier's check, bank credit, or bank wire transfer, or (2) by credit to the
account of the Custodian with a clearing corporation of a national securities
exchange of which the Custodian is a member, or (3) by credit to the account
of the Custodian or an Agent of the Custodian with a Securities System or a
Foreign Depository; provided, however, that (i) in the case of delivery of
physical certificates or instruments representing securities, the Custodian may
make delivery to the broker buying the securities, against receipt therefor, for
examination in accordance with "street delivery" custom, provided that the
payment therefor is to be made to the Custodian (which payment may be made by a
broker's check) or that such securities are to be returned to the Custodian, and
(ii) in the case of securities referred to in clause (iii) of the last sentence
of Section 2.4, the Custodian may
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make settlement, including with respect to the form of payment, in accordance
with generally accepted trade practice relating to such securities or the terms
of the instrument representing said security.
2.7 DEPOSITARY RECEIPTS - Upon receipt of proper instructions, to
instruct a Subcustodian or an Agent to surrender securities to the depositary
used by an issuer of American Depositary Receipts or International Depositary
Receipts (hereinafter collectively referred to as "ADRs") for such securities
against a written receipt therefor adequately describing such securities and
written evidence satisfactory to the Subcustodian or Agent that the depositary
has acknowledged receipt of instructions to issue with respect to such
securities ADRs in the name of the Custodian, or a nominee of the Custodian, for
delivery to the Custodian in Boston, Massachusetts, or at such other place as
the Custodian may from time to time designate.
Upon receipt of proper instructions, to surrender ADRs to the issuer
thereof against a written receipt therefor adequately describing the ADRs
surrendered and written evidence satisfactory to the Custodian that the issuer
of the ADRs has acknowledged receipt of instructions to cause its depositary to
deliver the securities underlying such ADRs to a Subcustodian or an Agent.
2.8 EXERCISE OF RIGHTS; TENDER OFFERS - Upon timely receipt of proper
instructions, to deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or similar securities for the purpose of
being exercised or sold, provided that the new securities and cash, if any,
acquired by such action are to be delivered to the Custodian, and, upon receipt
of proper instructions, to deposit securities upon invitations for tenders of
securities, provided that the
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consideration is to be paid or delivered or the tendered securities are to be
returned to the Custodian.
2.9 STOCK DIVIDENDS, RIGHTS, ETC. - To receive and collect all stock
dividends, rights and other items of like nature; and to deal with the same
pursuant to proper instructions relative thereto.
2.10 OPTIONS - Upon receipt of proper instructions or upon receipt of
instructions given pursuant to any agreement relating to an option or as
otherwise provided in any such agreement to (i) receive and retain, to the
extent provided to the Custodian, confirmations or other documents evidencing
the purchase, sale or writing of an option of any type on or in respect of a
security, securities index or similar form of property by the Fund; (ii) deposit
and maintain in a segregated account, either physically or by book-entry in a
Securities System or Foreign depository or with a broker, dealer or other
entity, securities, cash or other assets in connection with options transactions
entered into by the Fund; (iii) transfer securities, cash or other assets to a
Securities System, Foreign Depository, broker, dealer or other entity, as margin
(including variation margin) or other security for the Fund's obligations in
respect of any option; and (iv) pay, release and/or transfer such securities,
cash or other assets in accordance with a notice or other communication
evidencing the expiration, termination or exercise of or default under any such
option furnished by The Options Clearing Corporation, by the securities or
options exchange on which such option is traded or by such broker, dealer or
other entity as may be responsible for handling such options transaction or have
authority to give such notice or communication. The Custodian shall not be
responsible for the sufficiency of assets held in any segregated account
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established in compliance with applicable margin maintenance requirements or the
performance of the other terms of any agreement relating to an option.
Notwithstanding the foregoing, options on futures contracts and options to
purchase and sell foreign currencies shall be governed by Sections 2.14 and
2.15.
2.11 BORROWINGS - Upon receipt of proper instructions, to deliver
securities of the Fund to lenders or their agents as collateral for borrowings
effected by the Fund, provided that such borrowed money is payable to or upon
the Custodian's order as Custodian for the Fund.
2.12 DEMAND DEPOSIT BANK ACCOUNTS - To open and operate an account or
accounts in the name of the Fund, subject only to draft or order by the
Custodian, and to hold in such account or accounts as a deposit accepted on the
Custodian's books cash, including foreign currency, received for the account of
the Fund other than cash held as deposits with Banking Institutions in
accordance with the following paragraph. The responsibilities of the Custodian
for cash, including foreign currency, of the Fund accepted on the Custodian's
books as a deposit shall be that of a U. S. bank for a similar deposit.
If and when authorized by proper instructions, the Custodian may open
and operate an additional account(s) in such other banks or trust companies as
may be designated by the Fund in such instructions (any such bank or trust
company so designated by the Fund being referred to hereafter as a "Banking
Institution"), and may deposit cash, including foreign currency, of the Fund in
such account or accounts, provided that such account(s) (hereinafter
collectively referred to as "demand deposit bank accounts") shall be in the name
of the Custodian or a nominee of the Custodian for the account of the Fund or
for the account of the
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Custodian's customers generally and shall be subject only to the Custodian's
draft or order; provided that any such demand deposit bank account shall contain
only assets held by the Custodian as a fiduciary or custodian for the Fund
and/or other customers and that the records of the Custodian shall indicate at
all times the Fund and/or other customers for which such funds are held in such
account and the respective interests therein. Such demand deposit accounts may
be opened with Banking Institutions in the United States and in other countries
and may be denominated in either U. S. Dollars or other currencies as the Fund
may determine. The records for each such account will be maintained by the
Custodian but the deposits in any such account shall not constitute a deposit
liability of the Custodian. All such deposits, including with Subcustodians,
shall be deemed to be portfolio securities of the Fund and accordingly the
responsibility of the Custodian therefor shall be the same as and no greater
than the Custodian's responsibility in respect of other portfolio securities of
the Fund. The authorization by the Fund to appoint a Subcustodian as such shall
also constitute a proper instruction to open a demand deposit bank account
subject to the provisions of this paragraph with such Subcustodian.
2.13 INTEREST BEARING CALL OR TIME DEPOSITS - To place interest
bearing fixed term and call deposits with such banks and in such amounts as the
Fund may authorize pursuant to proper instructions. Such deposits may be placed
with the Custodian or with Subcustodians or other Banking Institutions as the
Fund may determine, in the name of the Custodian or a nominee of the Custodian
for the account of the Fund or the account of the Custodian's customers
generally and subject only to the Custodian's draft or order; provided that any
such deposit shall be held in an account containing only assets held by the
Custodian as a fiduciary
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or custodian for the Fund and/or other customers and that the records of the
Custodian shall indicate at all times the Fund and/or other customers for which
such funds are held in such account and the respective interests therein.
Deposits may be denominated in U. S. Dollars or other currencies and need not be
evidenced by the issuance or delivery of a certificate to the Custodian,
provided that the Custodian shall include in its records with respect to the
assets of the Fund appropriate notation as to the amount and currency of each
such deposit, the accepting Banking Institution and other appropriate details,
and shall retain such forms of advice or receipt evidencing the deposit, if any,
as may be forwarded to the Custodian by the Banking Institution. Funds, other
than those accepted on the Custodian's books as a deposit, but including those
placed with Subcustodians, shall be deemed portfolio securities of the Fund and
the responsibilities of the Custodian therefor shall be the same as those for
demand deposit bank accounts placed with other banks, as described in the second
paragraph of Section 2.12 of this Agreement. The responsibility of the Custodian
for funds accepted on the Custodian's books as a deposit shall be that of a U.S.
bank for a similar deposit.
2.14 FUTURES CONTRACTS. Upon receipt of proper instructions or upon
receipt of instructions given pursuant to any agreement relating to a futures
contract or an option thereon or as otherwise provided in any such agreement, to
(i) receive and retain, to the extent provided to the Custodian, confirmations
or other documents evidencing the purchase or sale of a futures contract or an
option on a futures contract by the Fund; (ii) deposit and maintain in a
segregated account, either physically or by book-entry in a Securities System or
Foreign Depository, for the benefit of any futures commission merchant, or pay
to such futures commission merchant, securities, cash or other assets designated
by the
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Fund as initial, maintenance or variation "margin" deposits intended to secure
the Fund's performance of its obligations under any futures contract purchased
or sold or any option on a futures contract written, purchased or sold by the
Fund, in accordance with the provisions of any agreement relating thereto or the
rules of the Commodity Futures Trading Commission and/or any contract market or
any similar organization on which such contract or option is traded; and (iii)
pay, release and/or transfer securities, cash or other assets into or out of
such margin accounts only in accordance with any such agreement or rules. The
Custodian shall not be responsible for the sufficiency of assets held in any
segregated account established in compliance with applicable margin maintenance
requirements or the performance of the other terms of any agreement relating to
a futures contract or an option thereon.
2.15 FOREIGN EXCHANGE TRANSACTIONS - Pursuant to proper instructions,
to settle foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf and for the account of the
Fund with such currency brokers or Banking Institutions, including
Subcustodians, as the Fund may direct pursuant to proper instructions. The
Custodian shall be responsible for the transmission of cash and instructions to
and from the currency broker or Banking Institution with which the contract or
option is made, the safekeeping of all certificates and other documents and
agreements evidencing or relating to such foreign exchange transactions as the
Custodian may receive and the maintenance of proper records as set forth in
Section 5.1. In connection with such transactions, as to which Proper
Instructions have been sent, the Custodian is authorized to make free outgoing
payments of cash in the form of U. S. Dollars or foreign currency without
receiving confirmation of a foreign exchange contract or option
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or confirmation that the countervalue currency completing the foreign exchange
contract has been delivered or received or that the option has been delivered or
received. The Fund accepts full responsibility for its use of third-party
foreign exchange dealers and for execution of said foreign exchange contracts
and options and understands that the Fund shall be responsible for any and all
costs and interest charges which may be incurred by the Fund or the Custodian as
a result of the failure or delay of third parties to deliver foreign exchange.
Alternatively, such transactions may be undertaken by the Custodian as
principal, if instructed by the Fund.
Foreign exchange contracts and options, other than those executed with
the Custodian as principal, but including those executed with Subcustodians,
shall be deemed to be portfolio securities of the Fund and the responsibility of
the Custodian therefor shall be the same as and no greater than the Custodian's
responsibility in respect of other portfolio securities of the Fund. The
responsibility of the Custodian with respect to foreign exchange contracts and
options executed with the Custodian as principal shall be that of a U. S. bank
with respect to a similar contract or option.
2.16 STOCK LOANS - Upon receipt of proper instructions, to deliver
securities of the Fund, in connection with loans of securities by the Fund, to
the borrower thereof prior to receipt of the collateral, if any, for such
borrowing, provided that for stock loans secured by cash collateral the
Custodian's instructions to any Securities System holding such securities
require that the Securities System may deliver the securities to the borrower
thereof only upon receipt of the collateral for such borrowing.
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2.17 COLLECTIONS - (i) To collect and receive all income, payments of
principal and other payments with respect to the securities held hereunder, and
in connection therewith to deliver the certificates or other instruments
representing the securities to the issuer thereof or its agent when securities
are called, redeemed, retired or otherwise become payable; provided, that the
payment is to be made in such form and manner and at such time, which may be
after delivery by the Custodian of the instrument representing the security, as
is in accordance with the terms of the instrument representing the security, or
such proper instructions as the Custodian may receive, or governmental
regulations, the rules of Securities Systems, Foreign Depositories or other U.S.
or foreign securities depositories and clearing agencies or, with respect to
securities referred to in clause (iii) of the last sentence of Section 2.4, in
accordance with generally accepted trade practice; (ii) to execute ownership and
other certificates and affidavits for all federal and state tax purposes in
connection with receipt of income, principal or other payments with respect to
securities of the Fund or in connection with transfer of securities; and (iii)
pursuant to proper instructions to take such other actions with respect to
collection or receipt of funds or transfer of securities which involve an
investment decision.
2.18 DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS - Upon receipt of proper
instructions from the Fund, or upon receipt of instructions from the Fund's
shareholder servicing agent or agent with comparable duties (the "Shareholder
Servicing Agent") (given by such person or persons and in such manner on behalf
of the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities to the Shareholder Servicing Agent
or otherwise apply funds or securities, insofar as available, for the payment of
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dividends or other distributions to Fund shareholders. Upon receipt of proper
instructions from the Fund, or upon receipt of instructions from the Shareholder
Servicing Agent (given by such person or persons and in such manner on behalf of
the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities, insofar as available, to the
Shareholder Servicing Agent or as such Agent shall otherwise instruct for
payment to Fund shareholders who have delivered to such Agent a request for
repurchase or redemption of their shares of the Fund.
2.19 PROXIES, NOTICES, ETC. - Promptly to deliver or mail to the Fund
all forms of proxies and all notices of meetings and any other notices or
announcements affecting or relating to securities owned by the Fund that are
received by the Custodian, and upon receipt of proper instructions, to execute
and deliver or cause its nominee to execute and deliver such proxies or other
authorizations as may be required. Neither the Custodian nor its nominee shall
vote upon any of such securities or execute any proxy to vote thereon or give
any consent or take any other action with respect thereto (except as otherwise
herein provided) unless ordered to do so by proper instructions.
2.20 NONDISCRETIONARY DETAILS - Without the necessity of express
authorization from the Fund, (1) to attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase, transfer or other
dealings with securities, funds or other property of the Fund held by the
Custodian except as otherwise directed from time to time by the Directors or
Trustees of the Fund, and (2) to make payments to itself or others for minor
expenses of handling
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securities or other similar items relating to the Custodian's duties under this
Agreement, provided that all such payments shall be accounted for to the Fund.
2.21 BILLS - Upon receipt of proper instructions, to pay or cause to
be paid, insofar as funds are available for the purpose, bills, statements and
other obligations of the Fund (including but not limited to interest charges,
taxes, management fees, compensation to Fund officers and employees, and other
operating expenses of the Fund).
2.22 DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEMS - The Custodian may
deposit and/or maintain securities owned by the Fund in (i) The Depository Trust
Company, (ii) the Participants Trust Company, (iii) any book-entry system as
provided in Subpart O of Treasury Circular ▇▇. ▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇ of 31
CFR Part 350, or the book-entry regulations of federal agencies substantially in
the form of Subpart O, or (iv) any other domestic clearing agency registered
with the Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository and whose use the
Fund has previously approved in writing (each of the foregoing being referred to
in this Agreement as a "Securities System"). Utilization of a Securities System
shall be in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may deposit and/or maintain Fund securities, either
directly or through one or more Agents appointed by the Custodian (provided that
any such agent shall be qualified to act as a custodian of the Fund pursuant to
the Investment Company Act of 1940 and the rules and regulations thereunder), in
a
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Securities System provided that such securities are represented in an account
("Account") of the Custodian or such Agent in the Securities System which shall
not include any assets of the Custodian or Agent other than assets held as a
fiduciary, custodian, or otherwise for customers;
2) The records of the Custodian with respect to securities of the Fund
which are maintained in a Securities System shall identify by book-entry those
securities belonging to the Fund;
3) The Custodian shall pay for securities purchased for the account of
the Fund upon (i) receipt of advice from the Securities System that such
securities have been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such payment and transfer for the
account of the Fund. The Custodian shall transfer securities sold for the
account of the Fund upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such transfer and
payment for the account of the Fund. Copies of all advices from the Securities
System of transfers of securities for the account of the Fund shall identify the
Fund, be maintained for the Fund by the Custodian or an Agent as referred to
above, and be provided to the Fund at its request. The Custodian shall furnish
the Fund confirmation of each transfer to or from the account of the Fund in the
form of a written advice or notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the Securities System
for the account of the Fund on the next business day;
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4) The Custodian shall provide the Fund with any report obtained by the
Custodian or any Agent as referred to above on the Securities System's
accounting system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System; and the Custodian and such Agents
shall send to the Fund such reports on their own systems of internal accounting
control as the Fund may reasonably request from time to time.
5) At the written request of the Fund, the Custodian will terminate the
use of any such Securities System on behalf of the Fund as promptly as
practicable.
2.23 OTHER TRANSFERS - To deliver securities, funds and other property
of the Fund to a Subcustodian or another custodian as necessary to effect
transactions authorized by proper instructions and upon receipt of proper
instructions, to deliver securities, funds and other property of the Fund to a
Subcustodian or another custodian of the Fund; and, upon receipt of proper
instructions, to make such other disposition of securities, funds or other
property of the Fund in a manner other than or for purposes other than as
enumerated elsewhere in this Agreement, provided that the instructions relating
to such disposition shall state the amount of securities to be delivered and the
name of the person or persons to whom delivery is to be made.
2.24 INVESTMENT LIMITATIONS - In performing its duties generally, and
more particularly in connection with the purchase, sale and exchange of
securities made by or for the Fund, the Custodian may assume unless and until
notified in writing to the contrary that proper instructions received by it are
not in conflict with or in any way contrary to any provisions of the Fund's
Declaration of Trust or Certificate of Incorporation or By-Laws (or comparable
documents) or votes or
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proceedings of the shareholders or Trustees or Directors of the Fund. The
Custodian shall in no event be liable to the Fund and shall be indemnified by
the Fund for any violation which occurs in the course of carrying out
instructions given by the Fund of any investment limitations to which the Fund
is subject or other limitations with respect to the Fund's powers to make
expenditures, encumber securities, borrow or take similar actions affecting the
Fund.
2.25 CUSTODIAN ADVANCES. - In the event that the Custodian is directed
by proper instructions to make any payment or transfer of funds on behalf of the
Fund for which there would be, at the close of business on the date of such
payment or transfer, insufficient funds held by the Custodian on behalf of the
Fund, the Custodian may, in its discretion without further proper instructions,
provide an advance ("Advance") to the Fund in an amount sufficient to allow the
completion of the transaction by reason of which such payment or transfer of
funds is to be made. In addition, in the event the Custodian is directed by
proper instructions to make any payment or transfer of funds on behalf of the
Fund as to which it is subsequently determined that the Fund has overdrawn its
cash account with the Custodian as of the close of business on the date of such
payment or transfer, said overdraft shall constitute an Advance. Any Advance
shall be payable on demand by Custodian, unless otherwise agreed by the Fund and
the Custodian, and shall accrue interest from the date of the Advance to the
date of payment by the Fund at a rate agreed upon from time to time by the
Custodian and the Fund. It is understood that any transaction in respect of
which the Custodian shall have made an Advance, including but not limited to a
foreign exchange contract or transaction in respect of which the Custodian is
not acting as a principal, is for the account of and at the risk of the Fund,
and not, by reason of such Advance,
- 17 -
deemed to be a transaction undertaken by the Custodian for its own account and
risk. The Custodian and the Fund acknowledge that the purpose of Advances is to
finance temporarily the purchase or sale of securities for prompt delivery in
accordance with the settlement terms of such transactions or to meet emergency
expenses not reasonably foreseeable by the Fund.
2.26 RESTRICTED SECURITIES. - In the case of a "restricted security",
the fund shall have the responsibility to provide to or obtain for the
Custodian, the issuer of the security or other appropriate third party any
necessary documentation, including without limitation, legal opinions or
consents, and to take any necessary actions required in connection with the
registration of restricted securities in the manner provided in Section 2.3 upon
acquisition thereof by the Fund or required in connection with any sale or other
disposition thereof by the Fund. Upon acquisition and until so registered, the
Custodian shall have no duty to service such restricted securities, including
without limitation, the receipt and collection of cash and stock dividends,
rights and other items of like nature, nor shall the Custodian have
responsibility for the inability of the Fund to exercise in a timely manner any
right in respect of any restricted security or to take any action in a timely
manner in respect of any other type of corporate action relating to a restricted
security. Similarly, the Custodian shall not have responsibility for the
inability of the Fund to sell or otherwise transfer in a timely manner any
restricted security in the absence of any such documentation or action to be
provided, obtained or taken by the Fund. At such time as the Custodian shall
receive any restricted security, regardless of when it shall be registered as
aforesaid, the Fund shall also deliver to the Custodian a term sheet summarizing
those rights, restrictions or other matters of which the Custodian should have
knowledge, such
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as exercise periods, expiration dates and payment dates, in order to assist the
Custodian in servicing such securities. As used herein, the term "restricted
security" shall mean a security which is subject to restrictions on transfer,
whether by reason of contractual restrictions or federal, state or foreign
securities or similar laws, or a security which has special rights or
contractual features which do not apply to publicly-traded shares of, or
comparable interests representing, such security.
2.27 PROPER INSTRUCTIONS - Proper instructions shall mean a tested
telex from the Fund or a written request, direction, instruction or
certification signed or initialled on behalf of the Fund by one or more person
or persons as the Board of Trustees or Directors of the Fund shall have from
time to time authorized, provided, however, that no such instructions directing
the delivery of securities or the payment of funds to an authorized signatory of
the Fund shall be signed by such person. Those persons authorized to give proper
instructions may be identified by the Board of Trustees or Directors by name,
title or position and will include at least one officer empowered by the Board
to name other individuals who are authorized to give proper instructions on
behalf of the Fund. Telephonic or other oral instructions or instructions given
by facsimile transmission may be given by any one of the above persons and will
be considered proper instructions if the Custodian reasonably believes them to
have been given by a person authorized to give such instructions with respect to
the transaction involved. Oral instructions will be confirmed by tested telex or
in writing in the manner set forth above but the lack of such confirmation shall
in no way affect any action taken by the Custodian in reliance upon such oral
instructions. The Fund authorizes the Custodian to tape record any and all
telephonic or other oral instructions given to
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the Custodian by or on behalf of the Fund (including any of its officers,
Directors, Trustees, employees or agents or any investment manager or adviser or
person or entity with similar responsibilities which is authorized to give
proper instructions on behalf of the Fund to the Custodian). Proper instructions
may relate to specific transactions or to types or classes of transactions, and
may be in the form of standing instructions.
Proper instructions may include communications effected directly
between electro-mechanical or electronic devices or systems, in addition to
tested telex, provided that the Fund and the Custodian agree to the use of such
device or system.
2.28 SEGREGATED ACCOUNT - The Custodian shall upon receipt of proper
instructions establish and maintain on its books a segregated account or
accounts for and on behalf of the Fund, into which account or accounts may be
transferred cash and/or securities of the Fund, including securities maintained
by the Custodian pursuant to Section 2.22 hereof, (i) in accordance with the
provisions of any agreement among the Fund, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934 and a member of the
National Association of Securities Dealers, Inc. (or any futures commission
merchant registered under the Commodity Exchange Act) relating to compliance
with the rules of the Options Clearing Corporation and of any registered
national securities exchange (or the Commodity Futures Trading Commission or any
registered contract market), or any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions by the
Fund, (ii) for purposes of segregating cash or securities in connection with
options purchased, sold or
- 20 -
written by the Fund or commodity futures contracts or options thereon purchased
or sold by the Fund, (iii) for the purposes of compliance by the Fund with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange Commission
relating to the maintenance of segregated accounts by registered investment
companies, and (iv) as mutually agreed from time to time between the Fund and
the Custodian.
3. POWERS AND DUTIES OF THE CUSTODIAN WITH RESPECT TO THE
APPOINTMENT OF SUBCUSTODIANS: The Fund hereby authorizes and instructs the
Custodian to hold securities, funds and other property of the Fund which are
maintained outside the United States at subcustodians appointed pursuant to the
provisions of this Section 3 (a "Subcustodian"). The Fund shall approve in
writing (1) the appointment of each Subcustodian and the subcustodian agreement
to be entered into between such Subcustodian and the Custodian, and (2) if the
Subcustodian is organized under the laws of a country other than the United
States, the country or countries in which the Subcustodian is authorized to hold
securities, cash and other property of the Fund. The Fund hereby further
authorizes and instructs the Custodian and any Subcustodian to utilize such
securities depositories located outside the United States which are approved in
writing by the Fund to hold securities, cash and other property of the Fund (a
"Foreign Depository"). Upon such approval by the Fund, the Custodian is
authorized on behalf of the Fund to notify each Subcustodian of its appointment
as such.
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Those Subcustodians, and the countries where and the Foreign
Depositories through which they or the Custodian may hold securities, cash and
other property of the Fund which the Fund has approved to date are set forth on
Appendix A hereto. Such Appendix shall be amended from time to time as
Subcustodians, and/or countries and/or Foreign Depositories are changed, added
or deleted. The Fund shall be responsible for informing the Custodian
sufficiently in advance of a proposed investment which is to be held in a
country not listed on Appendix A, in order that there shall be sufficient time
for the Fund to give the approval required by the preceding paragraph and for
the Custodian to put the appropriate arrangements in place with such
Subcustodian, including negotiation of a subcustodian agreement and submission
of such subcustodian agreement to the Fund for approval.
If the Fund shall have invested in a security to be held in a country
before the foregoing procedures have been completed, such security shall be held
by such agent as the Custodian may appoint. In any event, the Custodian shall be
liable to the Fund for the actions of such agent if and only to the extent the
Custodian shall have recovered from such agent for any damages caused the Fund
by such agent. At the request of the Fund, Custodian agrees to remove any
securities held on behalf of the Fund by such agent, if practical, to an
approved Subcustodian. Under such circumstances the Custodian will collect
income and respond to corporate actions on a best efforts basis.
With respect to securities and funds held by a Subcustodian, either
directly or indirectly (including by a Foreign Depository or foreign clearing
agency) or by a Foreign Depository or foreign clearing agency utilized by the
Custodian,
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notwithstanding any provision of this Agreement to the contrary, payment for
securities purchased and delivery of securities sold may be made prior to
receipt of the securities or payment, respectively, and securities or payment
may be received in a form, in accordance with governmental regulations, rules of
Foreign Depositories and foreign clearing agencies, or generally accepted trade
practice in the applicable local market.
With respect to the securities and funds held by a Subcustodian, either
directly or indirectly (including by a Foreign Depository or a foreign clearing
agency), including demand and interest bearing deposits, currencies or other
deposits and foreign exchange contracts as referred to in Sections 2.12, 2.13,
2.14 and 2.15, the Custodian shall be liable to the Fund if and only to the
extent that such Subcustodian is liable to the Custodian and the Custodian
recovers under the applicable subcustodian agreement. The Custodian shall
nevertheless be liable to the Fund for its own negligence in transmitting to any
such Subcustodian any instructions received by it from the Fund and for its own
negligence in connection with the delivery of any securities or funds held by it
to any such Subcustodian.
In the event that any Subcustodian appointed pursuant to the provisions
of this Section 3 fails to perform any of its obligations under the terms and
conditions of the applicable subcustodian agreement, the Custodian shall use its
best efforts to cause such Subcustodian to perform such obligations. In the
event that the Custodian is unable to cause such Subcustodian to perform fully
its obligations thereunder, the Custodian shall forthwith upon the Fund's
request terminate such Subcustodian in accordance with the termination
provisions under the applicable subcustodian agreement and, if necessary or
desirable, appoint another
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subcustodian in accordance with the provisions of this Section 3. At the
election of the Fund, it shall have the right to enforce, to the extent
permitted by the subcustodian agreement and applicable law, the Custodian's
rights against any such Subcustodian for loss or damage caused the Fund by such
Subcustodian.
The Custodian will not amend any subcustodian agreement or agree to
change or permit any changes thereunder except upon the prior written approval
of the Fund.
The Custodian may, at any time in its discretion upon notification to
the Fund, terminate any Subcustodian of the Fund in accordance with the
termination provisions under the applicable Subcustodian Agreement, and at the
written request of the Fund, the Custodian will terminate any Subcustodian in
accordance with the termination provisions under the applicable Subcustodian
Agreement.
If necessary or desirable, the Custodian may appoint another
subcustodian to replace a Subcustodian terminated pursuant to the foregoing
provisions of this Section 3, such appointment to be made upon approval of the
successor subcustodian by the Fund's Board of Directors or Trustees in
accordance with the provisions of this Section 3.
In the event the Custodian receives a claim from a Subcustodian under
the indemnification provisions of any subcustodian agreement, the Custodian
shall promptly give written notice to the Fund of such claim. No more than
thirty days after written notice to the Fund of the Custodian's intention to
make such payment, the Fund will reimburse the Custodian the amount of such
payment except in respect of any negligence or misconduct of the Custodian.
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4. ASSISTANCE BY THE CUSTODIAN AS TO CERTAIN MATTERS: The Custodian
may assist generally in the preparation of reports to Fund shareholders and
others, audits of accounts, and other ministerial matters of like nature.
5. POWERS AND DUTIES OF THE CUSTODIAN WITH RESPECT TO ITS ROLE AS
RECORDKEEPING AGENT: The Custodian shall have and perform the following duties
with respect to recordkeeping:
5.1 RECORDS - To create, maintain and retain such records relating
to its activities and obligations under this Agreement as are required under the
Investment Company Act of 1940 and the rules and regulations thereunder
(including Section 31 thereof and Rules 31a-1 and 31a-2 thereunder) and under
applicable Federal and State tax laws. All such records will be the property of
the Fund and in the event of termination of this Agreement shall be delivered to
the successor custodian.
5.2 ACCOUNTS - To keep books of account and render statements,
including interim monthly and complete quarterly financial statements, or copies
thereof, from time to time as reasonably requested by proper instructions.
5.3 ACCESS TO RECORDS - The books and records maintained by the
Custodian pursuant to Sections 5.1 and 5.2 shall at all times during the
Custodian's regular business hours be open to inspection and audit by officers
of, attorneys for and auditors employed by the Fund and by employees and agents
of the Securities and Exchange Commission, provided that all such individuals
shall observe all security requirements of the Custodian applicable to its own
employees
- 25 -
having access to similar records within the Custodian and such regulations as
may be reasonably imposed by the Custodian.
6. STANDARD OF CARE AND RELATED MATTERS:
6.1 LIABILITY OF THE CUSTODIAN WITH RESPECT TO PROPER INSTRUCTIONS;
EVIDENCE OF AUTHORITY, ETC. The Custodian shall not be liable for any action
taken or omitted in reliance upon proper instructions believed by it to be
genuine or upon any other written notice, request, direction, instruction,
certificate or other instrument believed by it to be genuine and signed by the
proper party or parties.
The Secretary or Assistant Secretary of the Fund shall certify to the
Custodian the names, signatures and scope of authority of all persons authorized
to give proper instructions or any other such notice, request, direction,
instruction, certificate or instrument on behalf of the Fund, the names and
signatures of the officers of the Fund, the name and address of the Shareholder
Servicing Agent, and any resolutions, votes, instructions or directions of the
Fund's Board of Directors or Trustees or shareholders. Such certificate may be
accepted and relied upon by the Custodian as conclusive evidence of the facts
set forth therein and may be considered in full force and effect until receipt
of a similar certificate to the contrary.
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement.
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The Custodian shall be entitled to receive and act upon advice of (i)
counsel regularly retained by the Custodian in respect of Custodian matters, or
(ii) at the expense of the Fund, and upon the Fund's approval, (x) counsel for
the Fund, or (y) such other counsel as the Fund and the Custodian may agree
upon, with respect to all matters, and the Custodian shall be without liability
for any action reasonably taken or omitted pursuant to such advice.
6.2 LIABILITY OF THE CUSTODIAN WITH RESPECT TO USE OF SECURITIES
SYSTEMS AND FOREIGN DEPOSITORIES - With respect to the portfolio securities,
cash and other property of the Fund held by a Securities System or by a Foreign
Depository utilized by the Custodian or any Subcustodian, the Custodian shall be
liable to the Fund only for any loss or damage to the Fund resulting from use of
the Securities System or Foreign Depository if caused by any negligence,
misfeasance or misconduct of the Custodian or any of its Agents (as said term is
defined in Section 6.6) or of any of its or its Agents' employees or from any
failure of the Custodian or any such Agent to enforce effectively such rights as
it may have against the Securities System or Foreign Depository. At the election
of the Fund, it shall be entitled to be subrogated to the rights of the
Custodian with respect to any claim against the Securities System, Foreign
Depository or any other person which the Custodian may have as a consequence of
any such loss or damage to the Fund if and to the extent that the Fund has not
been made whole for any such loss or damage.
6.3 STANDARD OF CARE; LIABILITY; INDEMNIFICATION - The Custodian
shall be held only to the exercise of reasonable care and diligence in carrying
out the provisions of this Agreement, provided that the Custodian shall not
thereby be
- 27 -
required to take any action which is in contravention of any applicable law,
rule or regulation or any order or judgment of any court of competent
jurisdiction.
The Fund agrees to indemnify and hold harmless the Custodian and its
nominees from all claims and liabilities (including counsel fees) incurred or
assessed against it or its nominees in connection with the performance of this
Agreement, except such as may arise from its or its nominee's breach of the
relevant standard of conduct set forth in this Agreement. Without limiting the
foregoing indemnification obligation of the Fund, the Fund agrees to indemnify
the Custodian and any nominee in whose name portfolio securities or other
property of the Fund is registered against any liability the Custodian or such
nominee may incur by reason of taxes assessed to the Custodian or such nominee
or other costs, liability or expense incurred by the Custodian or such nominee
resulting directly or indirectly from the fact that portfolio securities or
other property of the Fund is registered in the name of the Custodian or such
nominee.
In no event shall the Custodian incur liability under this Agreement if
the Custodian or any Subcustodian, Securities System, Foreign Depository,
Banking Institution or any agent or entity utilized by any of them is prevented,
forbidden or delayed from performing, or omits to perform, any act or thing
which this Agreement provides shall be performed or omitted to be performed, by
reason of (i) any Sovereign Risk or (ii) any provision of any present or future
law or resolution or order of the United States of America or any state thereof,
or of any foreign country or political subdivision thereof, or of any securities
depository or clearing agency which operates a central system for handling of
securities or equivalent book-entries in a country or which operates a
transnational system for
- 28 -
the central handling of securities or equivalent book-entries, or (iii) any
provision of any order or judgment of any court of competent jurisdiction. A
"Sovereign Risk" shall mean nationalization, expropriation, devaluation,
revaluation, confiscation, seizure, cancellation, destruction or similar action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting the
Fund's property; or acts of war, terrorism, insurrection or revolution; or any
other act or event beyond the Custodian's control.
6.4 REIMBURSEMENT OF DISBURSEMENTS, ETC. - The Custodian shall be
entitled to receive reimbursement from the Fund on demand, in the manner
provided in Section 7, for its cash disbursements, expenses and charges
(including the fees and expenses of any Subcustodian or any Agent) in connection
with this Agreement, but excluding salaries and usual overhead expenses.
6.5 SECURITY FOR OBLIGATIONS TO CUSTODIAN - If the Custodian or any
nominee thereof shall incur or be assessed any taxes, charges, expenses,
assessments, claims or liabilities in connection with the performance of this
Agreement (collectively a "Liability"), except such as may arise from its or
such nominee's breach of the relevant standard of conduct set forth in this
Agreement, or if the Custodian shall make any Advance to the Fund, then in such
event any property at any time held for the account of the Fund by the Custodian
or a Subcustodian shall be security for such Liability or for such Advance and
the interest thereon, and if the Fund shall fail to pay such Advance or interest
when due or shall fail to reimburse or indemnify the Custodian promptly in
respect of a
- 29 -
Liability, the Custodian shall be entitled to utilize available cash and to
dispose of the Fund's property, including securities, to the extent necessary to
obtain repayment, reimbursement or indemnification.
6.6 APPOINTMENT OF AGENTS - The Custodian may at any time or times in
its discretion appoint (and may at any time remove) any other bank or trust
company as its agent (an "Agent") to carry out such of the provisions of this
Agreement as the Custodian may from time to time direct, provided, however, that
the appointment of such Agent (other than an Agent appointed pursuant to the
third paragraph of Section 3) shall not relieve the Custodian of any of its
responsibilities under this Agreement.
6.7 POWERS OF ATTORNEY - Upon request, the Fund shall deliver to the
Custodian such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable in connection with the performance by the
Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement.
7. COMPENSATION OF THE CUSTODIAN: The Fund shall pay the Custodian a
custody fee based on such fee schedule as may from time to time be agreed upon
in writing by the Custodian and the Fund. Such fee, together with all amounts
for which the Custodian is to be reimbursed in accordance with Section 6.4,
shall be billed to the Fund and be paid in cash to the Custodian.
8. TERMINATION; SUCCESSOR CUSTODIAN: This Agreement shall continue
in full force and effect until terminated by either party by an instrument in
writing delivered or mailed, postage prepaid, to the other party, such
termination to take
- 30 -
effect not sooner than seventy five (75) days after the date of such delivery or
mailing. In the event of termination the Custodian shall be entitled to receive
prior to delivery of the securities, funds and other property held by it all
accrued fees and unreimbursed expenses the payment of which is contemplated by
Sections 6.4 and 7, and all Advances and Liabilities, upon receipt by the Fund
of a statement setting forth such fees, expenses, Advances and Liabilities.
In the event of the appointment of a successor custodian, it is agreed
that the funds and securities owned by the Fund and held by the Custodian or any
Subcustodian shall be delivered to the successor custodian, and the Custodian
agrees to cooperate with the Fund in execution of documents and performance of
other actions necessary or desirable in order to substitute the successor
custodian for the Custodian under this Agreement.
9. AMENDMENT: This Agreement constitutes the entire understanding
and agreement of the parties hereto with respect to the subject matter hereof.
No provision of this Agreement may be amended or terminated except by a
statement in writing signed by the party against which enforcement of the
amendment or termination is sought.
In connection with the operation of this Agreement, the Custodian and
the Fund may agree in writing from time to time on such provisions
interpretative of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretative or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
- 31 -
The section headings in this Agreement are for the convenience of the
parties and in no way alter, amend, limit or restrict the contractual
obligations of the parties set forth in this Agreement.
10. GOVERNING LAW: This Agreement is executed and delivered in The
Commonwealth of Massachusetts and shall be governed by and construed
according to the laws of said Commonwealth.
11. NOTICES: Notices and other writings delivered or mailed postage
prepaid to the Fund addressed to the Fund at __________________________________
_______________________________________________________________________________
________________________________________________ or to such other address as the
Fund may have designated to the Custodian in writing, or to the Custodian at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Securities
Department, or to such other address as the Custodian may have designated to the
Fund in writing, shall be deemed to have been properly delivered or given
hereunder to the respective addressee.
12. BINDING EFFECT: This Agreement shall be binding on and shall
inure to the benefit of the Fund and the Custodian and their respective
successors and assigns, provided that neither party hereto may assign this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party.
13. COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties.
- 32 -
14. MISCELLANEOUS: It is expressly agreed that the obligations of the
Fund hereunder, shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Trust personally, but bind only
the Trust property as provided in the Declaration of Trust on file with the
Secretary of the Commonwealth of Massachusetts.
- 33 -
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf on the day and year first above written.
THE PHOENIX EDGE ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
SERIES FUND
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ per pro /s/ ▇. ▇. ▇▇▇▇
------------------------ ----------------------------
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