EXHIBIT (g) 5
AMENDMENT TO CUSTODIAN AGREEMENT
AMENDMENT TO THE CUSTODIAN AGREEMENT
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THIS AMENDMENT, dated as of June 29, 2001, between certain open-end
management investment companies, as listed on the attached Appendix C, organized
either under the laws of the Commonwealth of Massachusetts or the State of
Delaware, as the case may be, and registered with the Commission under the 1940
Act (each a "Fund" and collectively the "Funds") and ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ &
CO., a limited partnership formed under the laws of the State of New York
(BBH&CO. or the CUSTODIAN), amends the Custodian Agreements between the parties
dated August 9, 1994, August 10, 1994, August 11, 1994 and September 4, 1996
(the "Custodian Agreements").
W I T N E S S E T H:
WHEREAS, the Fund has employed BBH&Co. to act as custodian for the Fund
and to provide related services, all as provided in the Custodian Agreement;
WHEREAS, the Securities and Exchange Commission has promulgated Rules
17f-5 and 17f-7 under the Investment Company Act of 1940 which establish rules
regarding the Fund's investments held outside the United States by sub
custodians or through Securities Depositories; and
WHEREAS, BBH&Co. is willing to provide services in connection with such
Rules in accordance with the terms of this Amendment to the Custodian
Agreements;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Fund and BBH&Co. hereby agree, as follows:
1. That Sections 2.22 shall be amended by the addition of the
following at the end of said Section:
"Unless instructed otherwise by the Fund, the Custodian may deposit
and/or maintain non-U.S. Investments of the Fund in any non-U.S.
Securities Depository provided such Securities Depository meets the
requirements of an "eligible securities depository" under Rule 17f-7
promulgated under the 1940 Act, or any successor rule or regulation
("Rule 17f-7") or which by order of the Securities and Exchange
Commission is exempted therefrom.
Prior to the placement of any assets of the Fund with a
non-U.S. Securities Depository, the Custodian: (a) shall provide to the
Fund or its authorized representative an analysis of the custody risks
associated with maintaining assets within such Securities Depository;
and (b) shall have established a system to monitor the custody risks
associated with maintaining assets with such Securities Depository on a
continuing basis and to promptly notify the Fund or its Investment
Adviser of any material changes in such risk.
The Custodian shall monitor these custody risks on a
continuing basis and promptly notify the Fund or its adviser, as
directed by the Fund, of any material changes in these risks.
In performing its duties, the Custodian shall use reasonable
care, prudence, and diligence in performing its obligations hereunder
and may, to the extent consistent with such standard, rely on such
reasonable sources of information as may be available including but not
limited to: (i) published ratings; (ii) information supplied by a
Subcustodian that is a participant in such Securities Depository; (iii)
industry surveys or publications; (iv) information supplied by the
depository itself, by its auditors (internal or external) or by the
relevant Foreign Financial Regulatory Authority. It is acknowledged
that information procured through some or all of these sources may not
be independently verifiable by the Custodian and that direct access to
Securities Depositories is limited under most circumstances.
Accordingly, the Custodian shall not be responsible for errors or
omissions in its duties hereunder provided that it has performed its
monitoring and assessment duties with reasonable care, prudence and
diligence. The risk assessment shall be provided to the Fund or its
Investment Advisor through access to the BBH&Co. website. Advices of
material change in such assessment may be provided by the Custodian in
the manner established as customary between the Fund and the Custodian
for transmission of material market information including Global
Updates.
2. In addition, that the definitions under the Custodian Agreement
shall be amended with the addition modification of the following:
FOREIGN FINANCIAL REGULATORY AUTHORITY shall have the meaning
given by Section 2(a)(50) of the 1940 Act.
SECURITIES DEPOSITORY shall mean a central or book entry
system or agency established under Applicable Law for purposes
of recording the ownership and/or entitlement to investment
securities for given market that, if a foreign Securities
Depository, meets the definitional requirements of Rule 17f-7
under the 1940 Act.
All defined terms used herein shall have the meaning given in the Custodian
Agreement as amended by this Amendment.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
duly executed as of the date first above written.
CERTAIN OPEN-END MANAGEMENT INVESTMENT COMPANIES
AS LISTED ON THE ATTACHED APPENDIX C
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Partner
17f-5 DELEGATION SCHEDULE
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By its execution of this Delegation Schedule, certain open-end
management investment companies, as listed on the attached Appendix C, organized
under the laws of either the Commonwealth of Massachusetts or State of Delaware
and registered with the Commission under the 1940 Act (each a "Fund" and
collectively the "Funds" acting through its Board of Directors/Trustees or its
duly appointed representative (the "Fund"), hereby appoints ▇▇▇▇▇ BROTHERS
▇▇▇▇▇▇▇▇ & CO., a New York limited partnership with an office in Boston,
Massachusetts (the "Delegate") as its delegate to perform certain functions with
respect to the custody of Fund's Assets outside the United States ("Foreign
Custody Manager") and the Delegate hereby accepts such delegation.
1. Maintenance of Fund's Assets Abroad. The Fund, acting through its
Board or its duly authorized representative, hereby instructs Delegate pursuant
to the terms of the Custodian Agreement to place and maintain the Fund's Assets
in countries outside the United States in accordance with Instructions received
from the Fund's investment advisor. Such instruction shall represent a Proper
Instruction under the terms of the Custodian Agreement. The Fund acknowledges
that - (a) the Delegate shall perform services hereunder only with respect to
the countries where it provides custodial services to the Fund under the
Custodian Agreement; (b) depending on conditions in the particular country,
advance notice may be required before the Delegate shall be able to perform its
duties hereunder in or with respect to such country (such advance notice to be
reasonable in light of the specific facts and circumstances attendant to
performance of duties in such country); and (c) nothing in this Delegation
Schedule shall require the Delegate to provide delegated or custodial services
in any country, and there may from time to time be countries as to which the
Delegate determines it will not provide delegation services.
2. Delegation. Pursuant to the provisions of Rule 17f-5 under the 1940
Act as amended, the Board hereby delegates to the Delegate, and the Delegate
hereby accepts such delegation and agrees to perform, only those duties set
forth in this Delegation Schedule concerning the safekeeping of the Fund's
Assets in each of the countries as to which it acts as the Board's delegate. The
Delegate is hereby authorized to take such actions on behalf of or in the name
of the Fund as are reasonably required to discharge its duties under this
Delegation Schedule, including, without limitation, to cause the Fund's Assets
to be placed with a particular Eligible Foreign Custodian in accordance
herewith. The Fund confirms to the Delegate that the Fund or its investment
adviser has considered the Sovereign Risk and prevailing country risk as part of
its continuing investment decision process, including such factors as may
be reasonably related to the systemic risk of maintaining the Fund's Assets in a
particular country, including, but not limited to, financial infrastructure,
prevailing custody and settlement systems and practices (including the use of
any Securities Depository in the context of information provided by the
Custodian in the performance of its duties as required under Rule 17f-7 and the
terms of the Custodian Agreement governing such duties), and the laws relating
to the safekeeping and recovery of the Fund's Assets held in custody pursuant to
the terms of the Custodian Agreement.
3. Selection of Eligible Foreign Custodian and Contract Administration.
The Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Fund's foreign custodial arrangements:
(a) Selection of Eligible Foreign Custodian. The Delegate shall
place and maintain the Fund's Assets with an Eligible Foreign Custodian;
provided that the Delegate shall have determined that the Fund's Assets will be
subject to reasonable care based on the standards applicable to custodians in
the relevant market after considering all factors relevant to the safekeeping of
such assets including without limitation:
(i) The eligible Foreign Custodian's practices, procedures,
and internal controls, including, but not limited to, the physical
protections available for certificated securities (if applicable), the
controls and procedures for dealing with any Securities Depository, the
method of keeping custodial records, and the security and data
protection practices;
(ii) Whether the Eligible Foreign Custodian has the
requisite financial strength to provide reasonable care for the Fund's
Assets;
(iii) the Eligible Foreign Custodian's general reputation and
standing; and
(iv) Whether the Fund will have jurisdiction over and be
able to enforce judgments against the Eligible Foreign Custodian, such
as by virtue of the existence of any offices of such Eligible Foreign
Custodian in the United States or such Eligible Foreign Custodian's
appointment of an agent for service of process in the United States or
consent to jurisdiction in the United States.
To the extent consistent with the standard of care set forth herein, the
Delegate shall be required to make the foregoing determination to the best of
its knowledge and belief based only on information reasonably available to it.
(b) Contract Administration. The Delegate shall ensure that the foreign
custody arrangements with an Eligible Foreign Custodian shall be governed by a
written contract that the Delegate has determined will provided reasonable care
for Fund assets based on the standards applicable to custodians in the relevant
market as determined in accordance with Section 3(a) hereof. Each such contract
shall, include provisions that provide:
(i) For indemnification or insurance arrangements (or any
combination of the foregoing) that will adequately protect the Fund
against the risk of loss of assets held in accordance with such
contract;
(ii) That the Fund's Assets will not be subject to any
right, charge, security interest, lien or claim of any kind in favor of
the Eligible Foreign Custodian or its creditors except a claim of
payment for their safe custody or administration or, in the case of
cash deposits, liens or rights in favor of creditors of such Custodian
arising under bankruptcy, insolvency or similar laws;
(iii) That beneficial ownership of the Fund's Assets will be
freely transferable without the payment of money or value other than
for safe custody or administration;
(iv) That adequate records will be maintained identifying
the Fund's Assets as belonging to the Fund or an being held by a third
party for the benefit of the Fund;
(v) That the Fund's independent public accountants will be
given access to those records described in (iv) above or confirmation
of the contents of such records; and
(vi) That the Fund will receive sufficient and timely
periodic reports with respect to the safekeeping of the Fund's Assets,
including, but not limited to, notification of any transfer to or from
the Fund's account or a third party account containing the Fund's
Assets.
(c) Limitation to Delegated Selection. Notwithstanding anything in this
Delegation Schedule to the contrary, the duties under this Section 3 shall apply
only to Eligible Foreign Custodians selected by the Delegate and shall not apply
to Securities Depositories or to any Eligible Foreign Custodian that the
Delegate is directed to use pursuant to Section 7.
4. Monitoring. The Delegate shall establish a system to monitor the
appropriateness of maintaining the Fund's Assets with each Eligible Foreign
Custodian that has been selected by the Delegate pursuant to Section 3 of this
Delegation Schedule and to monitor performance of the contract governing such
arrangements. The Delegate shall monitor the continuing appropriateness of
placement of the Fund's Assets in accordance with the criteria established under
Section 3(a) of this Delegation Schedule. The Delegate shall monitor the
continuing appropriateness of the contract governing the Fund's arrangements in
accordance with the criteria established under Section 3(b) of this Delegation
Schedule.
5. Reporting. At least annually and more frequently as mutually agreed
between the parties, the Delegate shall provide to the Board written reports
specifying placement of the Fund's Assets with each Eligible Foreign Custodian
selected by the Delegate pursuant to Section 3 of this Delegation Schedule and
shall promptly report as to any material changes to such foreign custody
arrangements. Delegate will prepare such a report with respect to any Eligible
Foreign Custodian that the Delegate has been instructed to use pursuant to
Section 7 only to the extent specifically agreed with respect to the particular
situation.
6. Withdrawal of Fund's Assets. If the Delegate determines that an
arrangement with a specific Eligible Foreign Custodian selected by the Delegate
under Section 3 of this Delegation Schedule no longer meets the requirements of
said Section, Delegate shall withdraw the Fund's Assets from the non-complying
arrangement as soon as reasonably practicable; provided, however, that if in the
reasonable judgment of the delegate, such withdrawal would require liquidation
of any of the Fund's Assets, it shall be the duty of the Delegate to provide
information regarding the particular circumstances and to act only in accordance
with Proper Instructions of the Fund or its Investment Advisor with respect to
such liquidation or other withdrawal.
7. Direction as to Eligible Foreign Custodian. Notwithstanding this
Delegation Schedule, the Fund, acting through its Board, its Investment Adviser
or its other authorized representative, may direct the Delegate to place and
maintain the Fund's Assets with a particular Eligible Foreign Custodian,
including without limitation with respect to investment in countries as to which
the Custodian will not provide delegation services. In such event, the Delegate
shall be entitled to rely on any such instruction as a Proper Instruction under
the terms of the Custodian Agreement and shall have no duties under this
Delegation Schedule with respect to such arrangement save those that it may
undertake specifically in writing with respect to each particular instance.
8. Standard of Care. In carrying out its duties under this Delegation
Schedule, the Delegate agrees to exercise reasonable care, prudence and
diligence such as a person having responsibility for safekeeping the Fund's
Assets would exercise.
9. Representations. The Delegate hereby represents and warrants that it is
a U.S. Bank and that this Delegation Schedule has been duly authorized, executed
and delivered by the Delegate and is a legal, valid and binding agreement of the
Delegate.
The Fund hereby represents and warrants that its Board of Directors has
determined that it is reasonable to rely on the Delegate to perform the
delegated responsibilities provided for herein and that this Delegation Schedule
has been duly authorized, executed and delivered by the Fund and is a legal,
valid and binding agreement of the Fund.
10. Effectiveness; termination. This Delegation Schedule shall be effective
as of the date on which this Delegation Schedule shall have been accepted by the
Delegate, as indicated by the date set forth below the Delegate's signature.
This Delegation Schedule may be terminated at any time, without penalty, by
written notice from the terminating party to the non-terminating party. Such
termination shall be effective on the 30th day following the date on which the
non-terminating party shall receive the foregoing notice. The foregoing to the
contrary notwithstanding, this Delegation Schedule shall be deemed to have been
terminated concurrently with the termination of the Custodian Agreement.
11. Notices. Notices and other communications under this Delegation
Schedule are to be made in accordance with the arrangements designated for such
purpose under the Custodian Agreement unless otherwise indicated in a writing
referencing this Delegation Schedule and executed by both parties.
12. Definitions. Capitalized terms in this Delegation Schedule have the
following meanings:
a. Eligible Foreign Custodian - shall have the meaning
set forth in Rule 17f-5(a)(1).
b. Fund's Assets - shall mean any of the Fund's investments
(including foreign currencies) for which the primary market is outside
the United States, and such cash and cash equivalents as are reasonably
necessary to effect the Fund's transactions in such investments.
c. Proper Instructions - shall have the meaning set
forth in the Custodian Agreement.
d. Securities Depository - shall have the meaning set
forth in Rule 17f-7.
e. Sovereign Risk - shall have the meaning set forth in
the Custodian Agreement.
f. U.S. Bank - shall mean a bank which qualifies to
serve as a custodian of assets of investment companies under Section
17(f) of the Act.
13. Governing Law and Jurisdiction. This Delegation Schedule shall be
construed in accordance with the laws of the State of New York. The parties
hereby submit to the exclusive jurisdiction of the Federal courts sitting in the
State of New York or the Commonwealth of Massachusetts or State of Delaware, as
the case may be, or of the state courts of either such States or such
Commonwealth.
14. Fees. Delegate shall perform its functions under this Delegation
Schedule for the compensation determined under the Custodian Agreement.
15. Integration. This Delegation Schedule sets forth all of the Delegate's
duties as Foreign Custody Manager with respect to the selection and monitoring
of Eligible Foreign Custodians, the administration of contracts with Eligible
Foreign Custodians, the withdrawal of assets from Eligible Foreign Custodians
and the issuance of reports in connection with such duties. This Delegation
Schedule constitutes the entire agreement between the Fund and Delegate with
respect to the subject matter hereof. Accordingly, this Delegation Schedule
supercedes the Foreign Custody Manager Delegation Agreement heretofore in
effect. The terms of the Custodian Agreement shall apply generally as to matters
not expressly covered in this Delegation Schedule, including dealings with the
Eligible Foreign Custodians in the course of discharge of the Delegate's
obligations under the Custodian Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
CERTAIN OPEN-END MANAGEMENT INVESTMENT COMPANIES
AS LISTED ON THE ATTACHED APPENDIX C
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Partner
APPENDIX C
TO
THE AMENDMENT TO THE CUSTODIAN AGREEMENTS
BETWEEN
CERTAIN OPEN-END MANAGEMENT INVESTMENT COMPANIES
and
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
Dated as of 6/29/01
PHOENIX-ABERDEEN SERIES FUND FOR PHOENIX-ABERDEEN GLOBAL SMALL CAP FUND
PHOENIX-ABERDEEN SERIES FUND FOR THE PHOENIX-ABERDEEN NEW ASIA FUND
THE PHOENIX EDGE SERIES FUND FOR PHOENIX-ABERDEEN NEW ASIA SERIES
THE PHOENIX EDGE SERIES FUND FOR PHOENIX-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GLOBAL
VALUE SERIES
THE PHOENIX EDGE SERIES FUND FOR THE PHOENIX-ABERDEEN INTERNATIONAL
SERIES
THE PHOENIX MULTI-PORTFOLIO FUND FOR THE PHOENIX-ABERDEEN INTERNATIONAL
FUND)
PHOENIX-ABERDEEN WORLDWIDE OPPORTUNITIES FUND