Exhibit 99.B8
Amended and Restated Custodian Agreement and Amendments Thereto
AMENDED AND RESTATED
CUSTODY AGREEMENT
Agreement made as of this 13th day of September, 1985, between THOMSON
▇▇▇▇▇▇▇▇ INVESTMENT TRUST, a Massachusetts business trust organized and
existing under the laws of The Commonwealth of Massachusetts, having a
principal office and place of business at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called the "Fund"), and THE BANK OF NEW YORK,
a New York corporation authorized to do a banking business, having its
principal office and place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called the "Custodian").
WHEREAS, the Fund and the Custodian entered into a Custody Agreement dated
as of February 23, 1984; and
WHEREAS, since February 23, 1984, the Fund has created two additional
series of shares of beneficial interest, which requires that certain
amendments be made to said Custody Agreement.
NOW, THEREFORE, in consideration of the mutual promises thereinafter set
forth the Fund and the Custodian agree that, effective as of the date
hereof, the Custody Agreement is hereby amended and restated as set forth
below.
ARTICLE I
Definitions:
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
"Authorized Person" shall be deemed to include any person, whether or not
such person is an Officer or employee of the Fund, duly authorized by the
Board of Trustees of the Fund to give Oral Instructions and Written
Instructions on behalf of the Fund and listed in the Certificate annexed
hereto as Appendix A or such other Certificate as may be delivered by the
fund to the Custodian from time to time.
"Book-Entry System" shall mean the Federal Reserve / Treasury book-entry
system for United States and federal agency securities, its successor or
successors and its nominee or nominees.
"Certificate" shall mean any notice, instruction, or other instrument in
writing and signed on behalf of the Fund by any two Officers, and which is
authorized or required by this Agreement to be delivered to the Custodian
by the Fund and is actually received by the Custodian.
"Call Option" shall mean an exchange-traded option with respect to
Securities, other than Futures Contracts and Futures Contract Options,
entitling the holder, upon timely exercise and payment of the exercise
price, as specified therein, to purchase from the writer thereof the
specified underlying Securities.
"Covered Call Option" shall mean an option with respect to Securities,
other than Futures Contracts and Futures Contract Options, entitling the
holder, upon timely exercise and payment of the exercise price, as
specified therein, to purchase from the writer thereof the specified
underlying Securities which are owned by the writer thereof and held
subject to appropriate restrictions.
"Clearing Member" shall mean a registered broker-dealer which is a
clearing member under the rules of O.C.C. and a member of a national
securities exchange qualified to act as a custodian for an investment
company, or any broker-dealer reasonably believed by the Custodian to be
such a clearing member.
"Collateral Account" shall mean a segregated account so denominated which
is specifically allocated to a Series and pledged to the Custodian as
security for, and in consideration of, the Custodian's issuance of (a) any
Put Option guarantee letter or similar document described in paragraph 8
of Article V herein, or (b) any receipt described in Article V or VIII
herein.
"Depository" shall mean The Depository Trust Company ("DTC"), a clearing
agency registered with the Securities and Exchange Commission, its
successor or successors and its nominee or nominees. The term "Depository"
shall further mean to include any other person authorized to act as a
depository under the Investment Company Act of 1940, its successor or
successors and its nominee or nominees, specifically identified in a
certified copy of a resolution of the Fund's Board of Directors
specifically approving deposits therein by the Custodian.
"Forward Commitment" shall mean a contract (other than a Futures Contract)
to purchase Securities for a fixed price at a future date beyond customary
settlement time.
"Futures Contract" shall mean the firm commitment to buy or sell fixed
income securities including, without limitation, U.S. Treasury Bills, U.S.
Treasury Notes, U.S. Treasury Bonds, domestic bank certificates of
deposit, and Eurodollar certificates of deposit, during a specified month
at an agreed upon price.
"Futures Contract Option" shall mean an option with respect to a Futures
Contract.
"Margin Account" shall mean a segregated account in the name of a broker,
dealer, futures commission merchant, or a Clearing Member, or in the name
of the Series for the benefit of a broker, dealer, futures commission
merchant, or Clearing Member, as the case may be, in accordance with an
agreement between the Fund on behalf of the Series, the Custodian and a
broker, dealer, futures commission merchant or Clearing Member (a "Margin
Account Agreement"), separate and distinct from the custody account for
each Series, in which certain Securities and/or money of a Series shall be
deposited and withdrawn from time to time in connection with transactions
in Futures Contracts and Futures Contract Options in which the Series from
time to time may engage. Securities held in the Book-Entry System or the
Depository shall be deemed to have been deposited in, or withdrawn from, a
Margin Account upon the Custodian's effecting an appropriate entry in its
books and records.
"Money Market Security" shall be deemed to include, without limitation,
certain debt obligations issued or guaranteed as to interest and principal
by the government of the United States or agencies or instrumentalities
thereof, any tax, bond or revenue anticipation note issued by any state or
municipal government or public authority, commercial paper, certificates
of deposit and bankers' acceptances, repurchase agreements with respect to
the same and bank time deposits, where the purchase and sale of such
securities normally requires settlement in Federal Funds on the same day
as such purchase or sale.
"O.C.C." shall mean the Options Clearing Corporation, a clearing agency
registered under Section 17A of the Securities and Exchange Act of 1934,
its successor or successors, and its nominee or nominees.
"Officers" shall be deemed to include the President, any Vice President,
the Clerk or the Treasurer of the Fund duly authorized by the Board of
Trustees of the Fund to execute any Certificate, instruction, notice or
other instrument on behalf of the Fund and listed in the Certificate
annexed hereto as Appendix B or such other Certificate as may be delivered
by the Fund to the Custodian from time to time.
"Option" shall mean a Call Option, Covered Call Option, and/or a Put
Option.
"Oral Instructions" shall mean verbal instructions actually received by
the Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person.
"Put Option" shall mean an exchange-traded option with respect to
Securities, other than Futures Contracts and Futures Contract Options,
entitling the holder, upon timely exercise and tender of the specified
underlying Securities, to sell such Securities to the writer thereof for
the exercise price.
"Security" shall be deemed to include, without limitation, Money Market
Securities, Call Options, Put Options, Futures Contracts, Futures Contract
Options, common stock, securities convertible into common stock and other
securities having characteristics similar to common stock preferred
stocks, debt obligations issued by state or municipal governments and by
public authorities (including, without limitation, general obligation
bonds, revenue bonds and industrial bonds and industrial development
bonds), bonds, debentures, notes, mortgages or other obligations, and any
certificates, receipts, warrants or other instruments representing rights
to receive, purchase, sell or subscribe for the same, or evidencing or
representing any other rights or interest therein, or any property or
assets.
"Senior Security Account" shall mean an account maintained and
specifically allocated to a Series under the terms of this Agreement as a
segregated account, by recordation or otherwise, within the custody
account in which certain Securities and/or other assets of the Fund
specifically allocated to such Series shall be deposited and withdrawn
from time to time in accordance with Certificates received by the
Custodian in connection with certain Options, Futures Contracts and
Futures Contract Options transactions in which the Fund from time to time
may engage.
"Series" shall mean the Thomson ▇▇▇▇▇▇▇▇ U.S. Government Fund, the Thomson
▇▇▇▇▇▇▇▇ Tax Exempt Fund, the Thomson ▇▇▇▇▇▇▇▇ Income Fund, the Thomson
▇▇▇▇▇▇▇▇ Growth Fund, the Thomson ▇▇▇▇▇▇▇▇ Opportunity Fund, and the
Thomson ▇▇▇▇▇▇▇▇ Short-Term Fund, each being a separate series of the
Trust's shares of beneficial interest representing interests in separate
portfolios of securities and other assets, and any such other series that
the Trustees of the Trust in their discretion may create and that are
described from time to time in the currently effective prospectus of the
Trust and for which the Custodian agrees to act as custodian pursuant to
Article XV hereof.
"Shares" shall mean the shares of beneficial interest of the Fund, each of
which is allocated to a particular Series.
"Written Instructions" shall mean written communications actually received
by the Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person by telex or any other
such system whereby the receiver of such communications is able to verify
by codes or otherwise with a reasonable degree of certainty the identity
of the sender of such communication.
ARTICLE II
Appointment of Custodian
1. The Fund hereby constitutes and appoints the Custodian as custodian of the
Securities and moneys at any time owned by any Series of the Fund during
the period of this Agreement.
2. The Custodian hereby accepts appointment as such custodian and agrees to
perform the duties thereof as hereinafter set forth.
ARTICLE III
Custody of Cash and Securities
1. Except as otherwise provided in paragraph 7 of this Article and in Article
VIII, the Fund will deliver or cause to be delivered to the Custodian all
Securities and all moneys owned by each Series of the Fund, at any time
during the period of this Agreement, and shall specify the Series which
owns any such Securities or money. The Custodian shall segregate, keep and
maintain the assets of the Series separate and apart. The Custodian will
not be responsible for any Securities and moneys not actually received by
it. The Custodian will be entitled to reverse any credits made on a
Series' behalf where such credits previously have been made and moneys not
finally collected.
The Fund shall deliver to the Custodian a certified resolution of the
Board of Trustees of the Fund, substantially in the form of Exhibit A
hereto, approving, authorizing and instructing the Custodian on a
continuous and on-going basis, until instructed to the contrary by a
Certificate, to deposit in the Book-Entry System all Securities eligible
for deposit therein, regardless of which Series owns such Securities, and
to utilize the Book-Entry System to the extent possible in connection with
its performance hereunder, including, without limitation, in connection
with settlements of purchases and sales of Securities, loans of
Securities, and deliveries and returns of Securities collateral. The Fund
also shall deliver to the Custodian a certified resolution of the Board of
Trustees of the Fund, substantially in the form of Exhibit B hereto,
approving, authorizing and instructing the Custodian on a continuous and
on-going basis, until instructed to the contrary by a Certificate, to
deposit in the Depository all Securities eligible for deposit therein,
regardless of which Series owns such Securities, and to utilize the
Depository to the extent possible with respect to such Securities in
connection with its performance hereunder, including, without limitation,
in connection with settlements of purchases and sales of Securities, loans
of Securities, and deliveries and returns of Securities collateral.
Securities and moneys deposited in either the Book-Entry System or the
Depository will be represented in non-priorietary accounts which include
only assets held by the Custodian for customers, including, but not
limited to, accounts in which the Custodian acts in a fiduciary or
representative capacity.
The Fund shall deliver to the Custodian, prior to the Custodian's
accepting, utilizing and acting as provided in this Agreement with respect
to Clearing Member confirmations for transactions in Options by a Series,
a certified resolution of the Fund's Board of Trustees, substantially in
the form of Exhibit C hereto, approving, authorizing and instructing the
Custodian on a continuous and on-going basis, until instructed to the
contrary by a Certificate, to accept, utilize and act in accordance with
such confirmations as provided in this Agreement.
2. The Custodian shall establish and maintain separate accounts in the name
of each Series, and shall credit to the separate account of each Series
all moneys received by it for the account of such Series. Money credited
to a separate account of a Series shall be disbursed by the Custodian
only:
(a) As hereinafter provided;
(b) Pursuant to Certificates setting forth the name and address of the
person to whom the payment is to be made, the Series account from
which payment is to be made, and the purpose for which payment is to
be made; or
(c) in payment of the fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to such Series.
3. Promptly after the close of business on each day, the Custodian shall
furnish the Fund with confirmations and a summary of all transfers to or
from the account of each Series of the Fund, either hereunder or with any
co-custodian or sub-custodian appointed in accordance with this Agreement,
during such day. Where Securities are transferred to the account of a
Series, the Custodian shall by book-entry or otherwise identify as
belonging to such Series a quantity of Securities in a fungible bulk of
Securities registered in the name of the Custodian (or its nominee) or
shown on the Custodian's non-proprietary account on the books of the
Book-Entry System or the Depository. At least monthly and from time to
time when requested by the Fund, the Custodian shall furnish the Fund with
a detailed statement, of the Securities and moneys held by the Custodian
for each Series of the Fund.
4. Except as otherwise provided in paragraph 7 of this Article and in Article
VIII, all Securities held by the Custodian hereunder which are issued or
issuable only in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that form; all other
Securities held hereunder may be registered in the name of the Series for
which such Securities are held, in the name of any duly appointed
registered nominee of the Custodian as the Custodian may from time to time
determine, or in the name of the Depository or its successor or
successors, or its nominee or nominees. The Fund agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to hold or
deliver in proper form for transfer, or to register in the name of its
registered nominee or the Depository any Securities which the Custodian
may hold hereunder and which may from time to time be registered in the
name of a Series of the Fund. The Custodian shall hold all such Securities
which are not held in the Book-Entry System or in the Depository in a
separate account in the name of such Series physically segregated at all
times from those of any other person or persons.
5. Except as otherwise provided in this Agreement and unless otherwise
instructed to the contrary by a Certificate, the Custodian by itself, or
through the use of the Book-Entry System or the Depository with respect to
Securities held hereunder and therein deposited, shall with respect to all
Securities held for each Series of the Fund hereunder:
(a) Collect all income due or payable;
(b) Present for payment and collect the amount payable upon such
Securities which may be called, but only if either (i) the Custodian
receives a written notice of such call, or (ii) notice of such call
appears in one or more of the publications listed in Appendix C
annexed hereto;
(c) Present for payment and collect the amount payable upon all Securities
which may mature or be redeemed, or retired, or otherwise became
payable;
(d) Surrender Securities in temporary form for definitive Securities;
(e) Execute, as custodian, any necessary declarations or certificates of
ownership under the Federal Income Tax Laws or the laws or regulations
of any other taxing authority now or hereafter in effect; and
(f) Hold directly, or through the Book-Entry System or the Depository with
respect to Securities therein deposited, for the account of a Series,
all rights and similar securities issued with respect to any
Securities held by the Custodian for such Series hereunder.
6. Upon receipt of a Certificate and not otherwise, the Custodian, directly
or through the use of the Book-Entry System or the Depository, shall:
(a) Execute and deliver to such persons as may be designated in such
Certificate proxies, consents, authorizations, and any other
instruments whereby the authority of a Series as owner of any
Securities held by the Custodian hereunder may be exercised;
(b) Deliver any Securities held by the Custodian hereunder for the Series
specified in such Certificate in exchange for other Securities or cash
issued or paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege and receive
and hold hereunder for the account of such Series any cash or other
Securities received in exchange;
(c) Deliver any Securities held by the Custodian hereunder for the Series
specified in such Certificate to any protective committee,
reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization
or sale of assets of any corporation, and receive and hold hereunder
for the account of such Series such certificates of deposit, interim
receipts or other instruments or documents as may be issued to it to
evidence such delivery;
(d) Make such transfers or exchanges of the assets of the Series specified
in such Certificate, and take such other steps as shall be stated in
such Certificate for the purpose of effectuating any duly authorized
plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Series or the Fund; and
(e) Present for payment and collect the amount payable upon Securities not
described in preceding paragraph 5(b) of this Article which may be
called as specified in the Certificate.
7. Notwithstanding any provision elsewhere contained herein, the Custodian
shall not be required to obtain possession of any instrument or
certificate representing any Option, any Futures Contract or any Futures
Contract Option until after it shall have determined, or shall have
received a Certificate from the Fund stating, that any such instruments or
certificates are available. The Fund shall deliver to the Custodian such a
Certificate no later than the business day preceding the availability of
any such instrument or certificate. Prior to such availability, the
Custodian shall comply with Section 17(f) of the Investment Company Act of
1940, as amended, in connection with the purchase, sale, settlement,
closing out or writing of Options, Futures Contracts, or Futures Contract
Options by making payments or deliveries specified in Certificates
received by the Custodian in connection with any such purchase, sale,
writing, settlement or closing out upon its receipt from a broker, dealer,
or futures commission merchant of a statement or confirmation reasonably
believed by the Custodian to be in the form customarily used by brokers,
dealers, or futures commission merchants with respect to such Options,
Futures Contracts, or Futures Contract Options, as the case may be,
confirming that such Security is held by such broker, dealer or futures
commission merchant, in book-entry form or otherwise, in the name of the
Custodian (or any nominee of the Custodian) as custodian for the Fund.
Whenever any such instruments or certificates are available, the Custodian
shall, notwithstanding any provision in this Agreement to the contrary,
make payment for any Option, Futures Contract, or Futures Contract Option
for which such instrument or such certificates are available only against
the delivery to the Custodian of such instrument or such certificate, and
deliver any Option, Future Contract, or Futures Contract Option for which
such instruments or such instruments or such certificates are available
only against receipt by the Custodian of payment therefor. Any such
instrument or certificate delivered to the Custodian shall be held by the
Custodian hereunder in accordance with, and subject to, the provisions of
this Agreement. Notwithstanding anything in this paragraph 7 to the
contrary, however, payments to or from a Margin Account and payments with
respect to Securities to which a Margin Account relates shall be made in
accordance with the terms and conditions of the corresponding Margin
Account Agreement.
ARTICLE IV
Purchase and Sale of Investments of the Fund other than
Options, Futures Contracts and Futures Contract Options.
1. Promptly after each purchase of Securities by a Series of the Fund, other
than a purchase of an Option, a Futures Contract, a Futures Contract
Option or a Forward Commitment entered into by a Series, the Fund shall
deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, a Certificate, and (ii) with
respect to each purchase of Money Market Securities, a Certificate, Oral
Instructions or Written Instructions, specifying with respect to each such
purchase: (a) the Series which purchased such Securities; (b) the name of
the issuer and the title of the Securities; (c) the number of shares or
the principal amount purchased and accrued interest, if any; (d) the date
of purchase and settlement; (e) the purchase price per unit; (f) the total
amount payable upon such purchase; (g) the name of the person from whom or
the broker through whom the purchase was made, and the name of the
clearing broker, if any; and (h) the name of the broker or other person to
whom payment is to be made. Upon receipt of Securities purchased by or for
a Series of the Fund, the Custodian shall pay out of the moneys held for
the account of such Series the total amount payable upon such purchase to
the person from whom or the broker through whom the purchase was made,
provided that the same conforms to the total amount payable as set forth
in such Certificate, Oral Instructions or Written Instructions.
2. Promptly after each sale of Securities by a Series of the Fund, other than
a sale of any Option, Futures Contract, Futures Contract Option or any
short sale, the Fund shall deliver to the Custodian (i) with respect to
each sale of Securities which are not Money Market Securities, a
Certificate, and (ii) with respect to each sale of Money Market
Securities, a Certificate, Oral Instructions or Written Instructions,
specifying with respect to each such sale: (a) the Series which sold such
Securities; (b) the name of the issuer and the title of the Security; (c)
the number of shares or principal amount sold, and accrued interest, if
any; (d) the date of sale; (e) the sale price per unit; (f) the total
amount payable to the Fund upon such sale; (g) the name of the broker
through whom or the person to whom the sale was made, and the name of the
clearing broker, if any; and (h) the name of the broker or other person to
whom the Securities are to be delivered. The Custodian shall deliver the
Securities to the broker or other person specified in the Certificate upon
receipt of the total amount payable to the Series upon such sale, provided
that such amount conforms to the total amount payable as set forth in such
Certificate, Oral Instructions or Written Instructions.
3. Promptly after any Forward Commitment is entered into by a Series of the
Fund, the Fund shall deliver to the Custodian a Certificate specifying
with respect to each Forward Commitment: (a) the Series which entered into
the Forward Commitment; (b) the name of the issuer and the title of the
underlying Securities; (c) the number of shares or the principal amount of
the underlying Securities and accrued interest, if any; (d) the date of
settlement; (e) the purchase price per unit of the underlying Securities;
(f) the total purchase price to be paid for the underlying Securities on
the settlement date; (g) the name of the broker or dealer through whom the
Forward Commitment was entered into; and (h) the amount and kind of
Securities and/or the amount of cash, if any, to be deposited in the
Senior Security Account for such Series in connection with such Forward
Commitment. In addition, the Fund shall deliver to the Custodian (or
arrange for delivery to the Custodian) a broker's or dealer's statement
confirming that such Forward Commitment was entered into in the name of a
duly appointed and registered nominee of the Custodian as custodian for
the Fund. On the settlement date for the purchase of the Securities
underlying the Forward Commitment, the Fund will deliver to the Custodian
a Certificate specifying the information required in paragraph 1 of this
Article. Upon receipt of the Securities underlying the Forward Commitment
entered into by a Series of the Fund, the Custodian shall pay out of the
moneys held for the account of such Series the amount set forth in the
Certificate and effect the withdrawals from the related Senior Security
Account specified in the Certificate.
ARTICLE V
Options
1. Promptly after the purchase of any Option by a Series of the Fund, the
Fund shall deliver to the Custodian a Certificate specifying with respect
to each Option purchased: (a) the Series which purchased such Option; (b)
the type of Option (put or call); (c) the name of the issuer and the title
and number of shares or principal amount subject to such Option; (d) the
expiration date; (e) the exercise price; (f) the dates of purchase and
settlement; (g) the total amount payable by the Series in connection with
such purchase; (h) the name of the Clearing Member through whom such
Option was purchased; and (i) the name of the broker to whom payment is to
be made. Upon receipt of a Clearing Member's statement confirming the
purchase of such Option held by such Clearing Member for the account of
the Custodian (or any duly appointed and registered nominee of the
Custodian) as custodian for the Fund, the Custodian shall pay out of
moneys held for the account of the Series specified in such Certificate
the total amount payable upon such purchase to the Clearing Member through
whom the purchase was made, provided that the such amount conforms to the
total amount payable as set forth in such Certificate.
2. Promptly after the sale of any Option purchased by a Series of the Fund
pursuant to paragraph 1 hereof, the Fund shall deliver to the Custodian a
Certificate specifying with respect to each such sale: (a) the Series
which sold such Option; (b) the type of Option (put or call); (c) the name
of the issuer and the title and number of shares or principal amount
subject to such Option; (d) the date of sale of such Option; (e) the sale
price of such Option; (f) the date of settlement; (g) the total amount
payable to the Series upon such sale; and (h) the name of the Clearing
Member through whom the sale was made. The Custodian shall consent to the
delivery of the Option sold by the Clearing Member which previously
supplied the confirmation described in paragraph 1 of this Article with
respect to such Option against payment to the Custodian of the total
amount payable to the series, provided that the such amount conforms to
the total amount payable as set forth in such Certificate.
3. Promptly after the exercise by a Series of the Fund of any Call Option
purchased by such Series pursuant to paragraph 1 of this Article, the Fund
shall deliver to the Custodian a Certificate specifying with respect to
such Call Option: (a) the Series which exercised such Call Option; (b) the
name of the issuer and the title and number of shares or principal amount
subject to the Call Option; (c) the expiration date; (d) the date of
exercise and settlement; (e) the exercise price per share; (f) the total
amount to be paid by the Fund upon such exercise; and (g) the name of the
Clearing Member through whom such Call Option was exercised. Upon receipt
of the Securities underlying the Call Option which was exercised the
Custodian shall pay out of the moneys held for the account of the Series
specified in such Certificate the total amount payable to the Clearing
Member through whom the Call Option was exercised, provided that such
amount conforms to the total amount payable as set forth in such
Certificate.
4. Promptly after the exercise by a Series of the Fund of any Put Option
purchased by such Series pursuant to paragraph 1 hereof, the Fund shall
deliver to the Custodian a Certificate specifying with respect to such Put
Option: (a) the Series which exercised such Put Option; (b) the name of
the issuer and the title and number of shares or principal amount subject
to the Put Option; (c) the expiration date; (d) the date of exercise and
settlement; (e) the exercise price per share; (f) the total amount to be
paid to the Fund upon such exercise; and (g) the name of the Clearing
Member through whom such Put Option was exercised. Upon receipt of the
amount payable upon the exercise of the Put Option, the Custodian shall
deliver or direct the Depository to deliver the Securities subject to the
Put Option, provided such amount conforms to the amount payable to the
Series as set forth in such Certificate.
5. Whenever a Series of the Fund writes a Covered Call Option, the Fund shall
promptly deliver to the Custodian a Certificate specifying with respect to
such Covered Call Option: (a) the Series which wrote such Covered Call
Option; (b) the name of the issuer and the title and number of shares or
principal amount for which the Covered Call Option was written and which
underlie the same; (c) the expiration date; (d) the exercise price; (e)
the premium to be received by the Fund; (f) the date such Covered Call
Option was written and (g) the name of the Clearing Member through whom
the premium is to be received. Upon receipt of the premium specified in
the Certificate with respect to such Covered Call Option, the Custodian
shall deliver or cause to be delivered such receipts as are required in
accordance with the customs prevailing among Clearing Members dealing in
Covered Call Options and shall impose, or direct the Depository to impose,
upon the underlying Securities specified in the Certificate such
restrictions as may be required by such receipts. Notwithstanding the
foregoing, the Custodian has the right, upon prior written notification to
the Fund, at any time to refuse to issue any receipts for Securities in
the possession of the Custodian and not deposited with the Depository
underlying a Covered Call Option.
6. Whenever a Covered Call Option written by a Series of the Fund and
described in the preceding paragraph of this Article is exercised, the
Fund shall promptly deliver to the Custodian a Certificate instructing the
Custodian to deliver, or to direct the Depository to deliver, the
Securities subject to such Covered Call Option and specifying: (a) the
Series which wrote such Covered Call Option; (b) the name of the issuer
and the title and number of shares or principal amount subject to the
Covered Call Option; (c) the Clearing Member to whom the underlying
Securities are to be delivered; and (d) the total amount payable to the
Fund upon such delivery. Upon the return and/or cancellation of any
receipts delivered pursuant to paragraph 5 of this Article and receipt of
the total amount payable to the Series as specified in the Certificate,
the Custodian shall deliver, or direct the Depository to deliver, the
underlying Securities as specified in the Certificate.
7. Whenever a Series of the Fund writes a Put Option, the Fund shall promptly
deliver to the Custodian a Certificate specifying with respect to such Put
Option: (a) the Series which wrote such Put Option; (b) the name of the
issuer and title and number of shares or principal amount for which the
Put Option is written and which underlie the same; (c) the expiration
date; (d) the exercise price; (e) the premium to be received by the Fund
(f) the date such Put Option is written; (g) the name of the Clearing
Member through whom the premium is to be received and to whom a Put Option
guarantee letter is to be delivered; (h) the amount of cash, and/or the
amount and kind of Securities, if any, to be deposited in the Senior
Security Account for such Series; and (i) the amount of cash and/or the
amount and kind of Securities to be deposited into the Collateral Account
for such Series. After making the deposits into the Collateral Account
specified in the Certificate, the Custodian shall issue a Put Option
guarantee letter substantially in the form attached hereto as Appendix
___, and deliver the same to the Clearing Member specified in the
Certificate against receipt of the premium specified in said Certificate.
Notwithstanding the foregoing, the Custodian shall be under no obligation
to issue any Put Option guarantee letter or similar document if it is
unable to make any of the representations contained therein.
8. Whenever a Put Option written by a Series of the Fund and described in the
preceding paragraph is exercised, the Fund shall promptly deliver to the
Custodian a Certificate specifying: (a) the Series which wrote such Put
Option; (b) the name of the issuer and title and number of shares or
principal amount which are to be delivered to the Series upon exercise of
the Put Option; (c) the Clearing Member from whom the underlying
Securities are to be received; (d) the total amount payable by the Series
upon such delivery; (e) the amount of cash and/or the amount and kind of
Securities to be withdrawn from the Senior Security Account; and (f) the
amount of cash and/or the amount and kind of Securities to be withdrawn
from the Collateral Account for such Series. Upon the return and/or
cancellation of any Put Option guarantee letter or similar document issued
by the Custodian in connection with such Put Option and receipt of the
Securities specified in the Certificate, the Custodian shall pay out of
the moneys held for the account of the Series specified in the Certificate
the total amount payable to the Clearing Member specified in the
Certificate as set forth in such Certificate, and shall effect the
withdrawals from the related Series Security Account or Collateral Account
specified in such Certificate.
9. Whenever a Series of the Fund purchases any Option identical to a
previously written Option described in paragraph 5 or 7 of this Article in
a transaction expressly designated as a "Closing Purchase Transaction" in
order to terminate its obligation as writer of an Option, the Fund shall
promptly deliver to the Custodian a Certificate specifying with respect to
the Option being purchased: (a) that the transaction is a Closing Purchase
Transaction; (b) the Series which purchased the Option; (c) the name of
the issuer and the title and number of shares or principal amount subject
to the Option; (d) the exercise price; (e) the premium to be paid by the
Series; (f) the expiration date (g) the type of Option (put or call); (h)
the date of such purchase; (i) the name of the Clearing Member to whom the
premium is to be paid; and (j) the amount of cash and/or the amount and
kind of Securities, if any, to be withdrawn from the Collateral Account
and/or the Senior Security Account for such Series. In the case of any
Covered Call Option liquidated through a Closing Purchase Transaction, the
Custodian, upon the return and/or cancellation of any receipt issued
pursuant to paragraph 5 of this Article, shall make the payment and effect
the withdrawals from the Senior Security Account and from the Segregated
Account specified in the Certificate, and remove, or direct to the
Depository to remove, the previously imposed restrictions on the
Securities underlying the Covered Call Option. In the case of any Put
Option liquidated through a Closing Purchase Transaction, upon receipt of
a broker's or dealer's statement confirming the liquidation of the Fund's
position as writer of such Put Option, the Custodian shall, upon the
return and/or cancellation of any Put Option guarantee letter issued
pursuant to paragraph 7 hereof, make the payment and effect the
withdrawals from the related Senior Security Account and/or the Collateral
Account specified in the Certificate.
10. Upon the expiration or exercise of, or consummation of a Closing
Transaction with respect to, any Option purchased or written by a Series
of the Fund and described in this Article, the Custodian shall delete such
Option from the statements delivered to the Fund pursuant to paragraph 3
Article III herein, and upon the return and/or cancellation of any
receipts issued by the Custodian, shall make such withdrawals from the
Collateral Account and/or the Senior Security Account as may be specified
in a Certificate received in connection with such expiration, exercise, or
consummation.
ARTICLE VI
Futures Contracts
1. Whenever a Series of the Fund shall enter into a Futures Contract, the
Fund shall deliver to the Custodian a Certificate specifying with respect
to such Futures Contract (or with respect to any number of identical
Futures Contract(s)): (a) the Series which entered into the Futures
Contact; (b) the category of Futures Contract (the name of the underlying
financial instrument); (c) the number of identical Futures Contracts
entered into; (d) the delivery or settlement date of the Futures
Contract(s); (e) the date the Futures Contract(s) was (were) entered into
and the maturity date; (f) whether the Series is buying or selling such
Futures Contract(s); (g) the amount of cash and/or the amount and kind of
Securities, if any, to be deposited by the Custodian in a Margin Account
with respect to such Futures Contract and the name in which such Margin
Account has been, or is to be, established; (h) the amount of cash and/or
the amount and kind of Securities, if any, to be deposited in the Senior
Security Account for such Series; (i) the name of the broker, dealer, or
futures commission merchant through whom the Futures Contract was entered
into; and (j) the amount of fee or commission, if any, to be paid and the
name of the broker, dealer, or futures commission merchant to whom such
amount is to be paid. Upon receipt of confirmation of purchase or sale of
Futures Contracts as provided in the Margin Account Agreement, the
Custodian shall make deposits, if any, to the Margin Account in accordance
with the terms and conditions of the Margin Account Agreement. The
Custodian shall make payment out of the assets of such Series of the fee
or commission, if any, specified in the Certificate and deposit in the
Senior Security Account for such Series the amount of cash and/or the
amount and kind of Securities specified in said Certificate.
2(a) Any variation margin payment or similar payment required to be made by the
Series to a broker, dealer, or futures commission merchant with respect to
an outstanding Futures Contract, shall be made by the Custodian in
accordance with the terms and conditions of the Margin Account Agreement.
2(b) Any variation margin payment or similar payment from a broker, dealer, or
futures commission merchant to the Series with respect to an outstanding
Futures Contract, shall be received by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
3. Whenever a Futures Contract held by the Custodian hereunder is retained by
a Series of the Fund until delivery or settlement is made on such Futures
Contract, the Fund shall deliver to the Custodian a Certificate
specifying: (a) the Series which has assumed the position in the Futures
Contract; (b) the Securities and/or amount of cash to be delivered or
received; (c) the broker, dealer or futures commission merchant to or from
whom payment or delivery is to be made or received; and (d) the amount of
cash and/or Securities to be withdrawn from the related Margin Account
and/or the Senior Security Account for such Series. Upon receipt of
confirmation as provided in the Margin Account Agreement to the effect
that the Futures Contract is being settled and that the Series' position
in such Futures Contract is thereby terminated, the Custodian shall make
the payment or delivery specified in the Certificate, and delete such
Futures Contract from the statements delivered to the Fund pursuant to
paragraph 3 of Article III herein.
4. Whenever a Series of the Fund shall enter into a Futures Contract to
offset a Futures Contract held by the Custodian hereunder for the account
of such Series, the Fund shall deliver to the Custodian a Certificate
specifying: (a) the items of information required in a Certificate
described in paragraph 1 of this Article, and (b) the Futures Contract
being offset. Upon receipt of confirmation of the offsetting transaction
as provided in the Margin Account Agreement, the Custodian shall make
payment out of the money held hereunder for the account of such Series of
the fee or commission, if any, specified in the Certificate and delete the
Futures Contract being offset from the statements delivered to the Fund
pursuant to paragraph 3 of Article III herein, and make such withdrawals
from the Senior Security Account for such Series and/or the Margin Account
as may be specified in such Certificate.
ARTICLE VII
Futures Contract Options
1. Promptly after the purchase of any Futures Contract Option by a Series of
the Fund, the Fund shall deliver to the Custodian a Certificate specifying
with respect to such Futures Contract Option: (a) the Series which
purchased such Option; (b) the type of Futures Contract Option (put or
call); (c) the type of Futures Contract and such other information as may
be necessary to identify the Futures Contract underlying the Futures
Contract Option purchased; (d) the expiration date; (e) the exercise
price; (f) the dates of purchase and settlement; (g) the amount of premium
to be paid by the Fund upon such purchase; (h) the name of the broker or
futures commission merchant through whom such option was purchased; and
(i) the name of the broker, or futures commission merchant, to whom
payment is to be made. Upon receipt of confirmation of the purchase of a
Futures Contract Option as provided in the Margin Account Agreement, the
Custodian shall pay out of the assets of such Series the total amount to
be paid upon such purchase to the broker or futures commissions merchant
through whom the purchase was made, provided that the same conforms to the
amount set forth in such Certificate.
2. Promptly after the sale of any Futures Contract Option purchased by a
Series of the Fund pursuant to paragraph 1 hereof, the Fund shall promptly
deliver to the Custodian a Certificate specifying with respect to each
such sale: (a) the Series which sold such Futures Contract Option; (b) the
type of Futures Contract Option (put or call); (c) the type of Futures
Contract and such other information as may be necessary to identify the
Futures Contract underlying the Futures Contract Option; (d) the date of
sale; (e) the sale price; (f) the date of settlement; (g) the total amount
payable to the Fund upon such sale; and (h) the name of the broker of
futures commission merchant through whom the sale was made. The Custodian
shall consent to the cancellation of the Futures Contract Option being
closed against payment to the Custodian of the total amount payable to the
Fund, provided such amount conforms to the total amount payable as set
forth in such Certificate.
3. Whenever a Futures Contract Option purchased by a Series of the Fund
pursuant to paragraph 1 is exercised by such Series, the Fund shall
promptly deliver to the Custodian a Certificate specifying: (a) the Series
which exercised such Futures Contract Option; (b) the particular Futures
Contract Option (put or call) being exercised; (c) the type of Futures
Contract underlying the Futures Contract Option; (d) the date of exercise;
(e) the name of the broker or futures commission merchant through whom the
Futures Contract Option is exercised; (f) the net total amount, if any,
payable by the Fund; (g) the amount, if any, to be received by the Fund;
(h) the amount of cash and/or the amount and kind of Securities to be
deposited in a Margin Account, and the name in which such Margin Account
is to be or has been established; (i) the amount of cash and/or the amount
and kind of Securities to be deposited in the Senior Security Account for
such Series. The Custodian shall make out of the assets of such Series the
payments, if any, and the deposits, if any, into the Senior Security
Account as specified in the Certificate. The deposits, if any, to be made
to the Margin Account shall be made by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
4. Whenever a Series of the Fund writes a Futures Contract Option, the Fund
shall promptly deliver to the Custodian a Certificate specifying with
respect to such Futures Contract Option: (a) the Series which wrote such
Futures Option; (b) the type of Futures Contract Option (put or call); (c)
the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures Contract
Option; (d) the expiration date; (e) the exercise price; (f) the premium
to be received by the Fund; (g) the name of the broker or futures
commission merchant through whom the premium is to be received; (h) if the
Futures Contract Option is a put, the amount of cash and/or the amount and
kind of Securities, if any, to be deposited by the Custodian in a Margin
Account relating to such Futures Contract Option, and the name in which
such Margin Account is to be or has been established; and (i) the amount
of cash and/or the amount and kind of Securities, if any, to be deposited
in the Senior Security Account for such Series. Upon receipt of the
premium specified in the Certificate, the Custodian shall make the
deposits into the Margin Account (in accordance with the Margin Account
Agreement) and/or into the Senior Security Account, as specified in the
Certificate, out of the moneys and Securities held hereunder for the
account of such Series.
5. Whenever a Futures Contract Option written by a Series of the Fund which
is a call is exercised, the Fund shall promptly deliver to the Custodian a
Certificate specifying: (a) the Series which wrote such Futures Contract
Option; (b) the particular Futures Contract Option exercised; (c) the type
of Futures Contract underlying the Futures Contract Option; (d) the name
of the broker or futures commission merchant through whom such Futures
Contract Option was exercised; (e) the net total amount, if any, payable
to the Series upon such exercise; (f) the net total amount, if any,
payable by the Series upon such exercise; (g) the amount of cash and/or
amount and kind of Securities to be deposited in a Margin Account, and the
name in which such account is to be or has been established; and (h) the
amount of cash and/or the amount and kind of Securities to be deposited in
the Senior Security Account for such Series. Upon receipt of any
confirmation required by the Margin Account Agreement and of the net total
amount payable to the Series, if any, specified in such Certificate, the
Custodian shall make the payments, if any, and the deposits, if any, into
the Margin Account (in accordance with the Margin Account Agreement)
and/or the Senior Security Account, as specified in the Certificate.
6. Whenever a Futures Contract Option which is written by a Series of the
Fund and which is a put is exercised, the Fund shall promptly deliver to
the Custodian a Certificate specifying: (a) the Series which wrote such
Option; (b) the particular Futures Contract Option exercised; (c) the type
of Futures Contract underlying such Futures Contract Option; (d) the name
of the broker or futures commission merchant through whom such Futures
Contract Option is exercised; (e) the net total amount, if any, payable to
the Series upon such exercise; (f) the net total amount, if any, payable
by the Series upon such exercise; and (g) the amount and kind of
Securities and/or cash to be withdrawn from or deposited in, the Senior
Security Account for such Series, if any, and/or the related Margin
Account, if any. Upon receipt of the net total amount payable to the
Series, if any, specified in the Certificate, the Custodian shall make the
payments, if any, and the deposits, if any, into the Margin Account (in
accordance with the Margin Account Agreement) and/or the Senior Security
Account, as specified in the Certificate, out of the moneys and Securities
held hereunder for the account of such Series.
7. Whenever a Series of the Fund purchases any Futures Contract Option
identical to Futures Contract Option it has written in order to liquidate
its position as a writer of such Futures Contract Option, the Fund shall
promptly deliver to the Custodian a Certificate specifying with respect to
the Futures Contract Option being purchased: (a) the Series which
purchases such Option; (b) that the transaction is a closing transaction;
(c) the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures Option
Contract; (d) the exercise price; (e) the premium to be paid by the
Series; (f) the expiration date; (g) the name of the broker or futures
commission merchant to whom the premium is to be paid; and (h) the amount
of cash and/or the amount and kind of Securities, if any, to be withdrawn
from the related Margin Account and/or the Senior Security Account for
such Series. Upon receipt of any confirmation required by the Margin
Account Agreement and of the Custodian shall make the payments and effect
the withdrawals from the related Margin Account (in accordance with the
Margin Account Agreement) and/or the Senior Security Account specified in
the Certificate.
8. Upon the expiration, exercise, or consumption of a closing transaction
with respect to, any Futures Contract Option written or purchased by a
Series of the Fund and described in this Article, the Custodian shall (a)
delete such Futures Contract Option from the statements delivered to the
Fund pursuant to paragraph 3 of Article III herein and, (b) make such
withdrawals from and/or in the case of an exercise such deposits into the
Margin Account (in accordance with the Margin Account Agreement) and/or
the Senior Security Account as may be specified in a Certificate.
9. Futures Contracts acquired by a Series of the Fund through the exercise of
a Futures Contract Option described in this Article shall be subject to
Article VI hereof.
ARTICLE VIII
Short Sales
1. Promptly after any short sale by any Series of the Fund, the Fund shall
promptly deliver to the Custodian a Certificate specifying: (a) the Series
which made such short sale; (b) the name of the issuer and title of the
Security; (c) the number of shares or principal amount sold, and accrued
interest or dividends, if any; (d) the dates of the sale and settlement;
(e) the sale price per unit; (f) the total amount credited to the Fund
upon such sale, if any; (g) the amount of cash and/or the amount and kind
of Securities, if any to be deposited in a Senior Security Account; and
(h) the name of the broker through whom such short sale was made. Upon
receipt of a statement from such broker confirming such sale and that the
total amount credited to the Series upon such sale, as specified in the
Certificate, is held by such broker for the account of the Custodian (or
any nominee of the Custodian) as custodian of the Fund, the Custodian
shall issue a receipt or make the deposits into the Senior Security
Account specified in the Certificate.
2. In connection with the closing-out of any short sale, the Fund shall
promptly deliver to the Custodian a Certificate specifying with respect to
each such closing-out: (a) the Series for which such transaction is being
made; (b) the name of the issuer and the title of the Security; (c) the
number of shares of the principal amount, and accrued interest or
dividends, if any, required to effect such closing-out to be delivered to
the broker; (d) the dates of closing-out and settlement; (e) the purchase
price per unit; (f) the net total amount payable to the Fund upon such
closing-out; (g) the net total amount payable to the broker upon such
closing-out; (h) the amount of cash and/or the amount and kind of
Securities, if any, to be withdrawn from the Senior Security Account; and
(i) the name of the broker through whom the Fund is effecting such
closing-out. Upon receipt of the net total amount payable to the Series
upon such closing-out, and the return and/or cancellation of the receipts,
if any, issued by the Custodian with respect to the short sale being
closed-out, the Custodian shall pay to the broker the net total amount
payable to the broker, and make the withdrawals from the Senior Security
Account, as the same as specified in the Certificate, out of moneys held
hereunder for the account of such Series.
ARTICLE IX
Loan of Portfolio Securities of the Fund
1. Promptly after each loan of portfolio Securities held by the Custodian
hereunder for the account of a Series, the Fund shall deliver or cause to
be delivered to the Custodian a Certificate specifying with respect to
each such loan: (a) the Series which owns the loaned Securities; (b) the
name of the issuer and the title of the Securities; (c) the number of
shares or the principal amount loaned; (d) the date of loan and delivery;
(e) the total amount to be delivered to the Custodian against the loan of
the Securities, including the amount of cash collateral and the premium,
if any, separately identified; and (f) the name of the broker, dealer, or
financial institution to which the loan was made. The Custodian shall
deliver the Securities thus designated to the broker, dealer or financial
institution to which the loan was made upon receipt of the total amount
designated in the Certificate to be delivered against the loan of
Securities. The Custodian may accept payment in connection with a delivery
otherwise than through the Book-Entry System or Depository only in the
form of a certified or bank cashier's check payable to the order of the
Fund or the Custodian drawn on New York Clearing House funds and may
deliver Securities in accordance with the customs prevailing among dealers
in securities.
2. Promptly after each termination of a loan of Securities by a Series of the
Fund, the Fund shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to such loan termination and return of
Securities: (a) the Series which owns the loaned Securities; (b) the name
of the issuer and the title of the Securities to be returned; (c) the
number of shares or the principal amount to be returned; (d) the date of
termination; (e) the total amount to be delivered by the Custodian
(including the cash collateral for such Securities minus any offsetting
credits as described in said Certificate); and (f) the name of the broker,
dealer, or financial institution from which the Securities will be
returned. The Custodian shall receive all Securities returned from the
broker, dealer, or financial institution to which such Securities were
loaned and upon receipt thereof shall pay, out of the moneys held for the
account of the Series, the total amount payable upon such return of
Securities as set forth in the Certificate.
ARTICLE X
Concerning Margin Accounts, Senior Security Accounts, and Collateral
Accounts
1. The Custodian shall, from time to time, make such additional deposits to,
or withdrawals from, a Senior Security Account as specified in a
Certificate received by the Custodian. Such Certificate shall specify the
Series for which such deposit or withdrawal is to be made, and the amount
of cash and/or the amount and kind of Securities specifically allocated to
such Series to be deposited in, or withdrawn from, such Senior Security
Account for such Series. In the event that the Fund fails to specify in a
Certificate the Series, the name of the issuer, the title and the number
of shares or the principal amount of any particular Securities to be
deposited by the Custodian into or withdrawn from, a Senior Securities
Account, the Custodian shall be under no obligation to make any such
deposit or withdrawal and shall so notify the Fund.
2. The Custodian shall make deliveries or payments from a Margin Account to
the broker, dealer, futures commission merchant or Clearing Member in
whose name, or for whose benefit, the account was established only in
accordance with the Margin Account Agreement.
Except as otherwise expressly provided herein, the Custodian shall be
under no duty or obligation to act in accordance with or with respect to
any Certificate, or with any other order, direction or request of the
Fund, in whatever form, with respect to any cash or Securities deposited
in any Margin Account, including, without limitation, any Certificate,
order, direction, or request to pay, deliver, transfer or withdraw any
such cash or Securities unless such order, direction, or request is
contained in a Certificate believed by the Custodian to bear the signed
consent thereto of an officer, director, or employee of the broker,
dealer, futures commission merchant or Clearing Member in whose name, or
for whose benefit, the Margin Account was established.
3. Amounts received by the Custodian as payments or distributions with
respect to Securities deposited in any Margin Account shall be dealt with
in accordance with the terms and conditions of the Margin Account
Agreement.
4. The Custodian shall have a continuing lien and security interest in and to
any property at any time held by the Custodian in any Collateral Account
described herein. In accordance with applicable law the Custodian may
enforce its lien and realize on any such property whenever the Custodian
has made payment or delivery pursuant to any Put Option guarantee letter
or similar document or any receipt issued hereunder by the Custodian. In
the event the Custodian should realize on any such property net proceeds
which are less than the Custodian's obligations under any Put Option
guarantee letter or similar document or any receipt, such deficiency shall
be a debt owed the Custodian by the Fund within the scope of Article XIII
herein.
5. In the event the Fund furnishes the Custodian with evidence of an order of
exemption or other regulatory relief under the Investment Company Act of
1940, as amended, permitting the Fund to establish with brokers and/or
futures commission merchants accounts (hereinafter "Exempt Accounts")
intended to replace any Margin Account, then, notwithstanding any other
provisions contained herein, the Fund may substitute an instruction to
deliver Securities and/or money to a broker or futures commission merchant
for deposit into an Exempt Account for an instruction to deposit
Securities and/or money into a Margin Account. The Custodian shall be
under no duty or obligation with respect to any Securities and/or money so
delivered for deposit into an Exempt Account, including any obligation to
provide the Fund with any statements with respect to any Exempt Account,
nor shall the Custodian have any duty or obligation with respect to
operation or terms of the Exempt Account, the timely return of any such
Securities or money delivered for deposit therein, or the payment by such
broker or futures commission merchant of amounts to be paid to the Fund
with respect to such account. The Custodian shall accept from any such
broker and/or futures commission merchant any Securities and/or moneys
purportedly paid out of, or distributed with respect to, any Exempt
Account, when so instructed in a Certificate specifying the Series to
which the same is specifically allocated.
6. On each business day, the Custodian shall furnish the Fund with a
statement with respect to each Margin Account in which money or Securities
are held as of the close of business on the previous business day,
specifying: (a) the name of the Margin Account; (b) the amount and kind of
Securities held therein; and (c) the amount of money held therein. The
Custodian shall make available upon request to any broker, dealer, or
futures commission merchant specified in the name of a Margin Account a
copy of the statement furnished the Fund with respect to such Margin
Account.
7. Promptly after the close of business on each business day in which cash
and/or Securities are maintained in a Collateral Account for any Series,
the Custodian shall furnish the Fund with a Statement with respect to such
Collateral Account specifying the amount of cash and/or the amount and
kind of Securities held therein. No later than the close of business next
succeeding the delivery to the Fund of such statement, the Fund shall
furnish to the Custodian a Certificate or Written Instructions specifying
the then-current market value of the Securities described in such
statement. In the event such market value is less than the Custodian's
obligation with respect to any outstanding Put Option guarantee letter or
similar document, the Fund shall promptly specify in a Certificate the
additional cash and/or Securities to be deposited in such Collateral
Account to eliminate such deficiency.
ARTICLE XI
Payment of Dividends or Distributions
1. The Fund shall furnish to the Custodian a copy of the resolution or
resolutions of the Board of Trustees of the Fund, certified by the
Trustees or any Assistant Clerk, either (i) setting forth with respect to
the Series specified therein the date of the declaration of a dividend or
distribution, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable
per Share of such Series to the shareholders of record as of that date and
the total amount payable to the Dividend Agent and any sub-dividend agent
or co-dividend agent of the Fund on the payment date, or (ii) authorizing
with respect to the Series specified therein the declaration of dividends
and distributions on a daily basis and authorizing the Custodian to rely
on Oral Instructions, Written Instructions or a Certificate setting forth
the date of the declaration of such dividend or distribution, the date of
payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per Share of such Series
to the shareholders or record as of that date and the total amount payable
to the Dividend Agent on the payment date.
2. Upon the payment date specified in such resolution, Oral Instructions,
Written Instructions or Certificate, as the case may be, the Custodian
shall pay out of the moneys held for the account of each Series the total
amount payable to the Dividend Agent, and any sub-divided agent or
co-dividend agent of the Fund with respect to such Series.
ARTICLE XII
Sale and Redemption of Shares
1. Whenever the Fund shall sell any Shares of any Series, it shall deliver to
the Custodian a Certificate duly specifying:
(a) the Series, the number of Shares sold, trade date, and price; and
(b) the amount of money to be received by the Custodian for the sale of
such Shares and specifically allocated to the separate account in the
name of such Series.
2. Upon receipt of such money from the Transfer Agent, the Custodian shall
credit such money to the separate account in the name of the Series for
which such money was received.
3. Upon issuance of any Shares of any Series described in the foregoing
provisions of this Article, the Custodian shall pay, out of the money held
for the account of such Series, all original issue or other taxes required
to be paid by the Fund in connection with such issuance upon the receipt
of a Certificate specifying the amount to be paid.
4. Except as provided hereinafter, whenever the Fund desires the Custodian to
make payment out of the money held by the Custodian hereunder in
connection with a redemption of any Shares, it shall furnish to the
Custodian a Certificate specifying:
(a) The number and Series of Shares redeemed; and (b) The amount to be paid
for such Shares.
5. Upon receipt from the Transfer Agent of an advice setting forth the Series
and number of Shares received by the Transfer Agent for redemption and
that such Shares are in good form for redemption, the Custodian shall make
payment to the Transfer Agent out of the moneys held for the separate
account of the Series of Shares being redeemed the total amount specified
in the Certificate issued pursuant to the foregoing paragraph 4 of this
Article.
6. Notwithstanding the above provisions regarding the redemption of any
Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which from time to time may be offered by the Fund, the
Custodian, unless otherwise instructed by a Certificate, shall, upon
receipt of an advice from the Fund or its agent setting forth that the
redemption is in good form for redemption in accordance with the check
redemption procedure, honor the check presented as part of such check
redemption privilege out of the moneys held in the separate account of the
Series of Shares being redeemed.
ARTICLE XIII
Overdrafts or Indebtedness
1. If the Custodian should in its sole discretion advance funds on behalf of
any Series which results in an overdraft because the moneys held by the
Custodian in the separate account for such Series shall be insufficient to
pay the total amount payable upon a purchase of Securities by such Series,
as set forth in a Certificate, Oral Instructions, or Written Instructions
or which results in an overdraft in the separate account of such Series
for some other reason, of if the Series is for any other reason indebted
to the Custodian (except in respect of the fees of the Custodian
attributable to such Series and borrowings by such Series for investment
or for temporary or emergency purposes using Securities as collateral
pursuant to a separate agreement and subject to the provisions of
paragraph 2 of this Article), such overdraft or indebtedness shall be
deemed to be a loan made by the Custodian to the Series payable on demand
and shall bear interest from the date incurred at a rate per annum (based
on a 360-day year for the actual number of days involved) equal to 1/2%
over Custodian's prime commercial lending rate in effect from time to
time, such rate to be adjusted on the effective date of any change in such
prime commercial lending rate but in no event to be less than 6% per
annum. In addition, the Fund hereby agrees that the Custodian shall have a
continuing lien and security interest in and to assets of a Series which
is indebted to the Custodian (except with respect to fees of the Custodian
attributable to such Series and borrowings by such Series for investment
or for temporary or emergency purposes using securities as collateral) to
the extent of 10% of such Series' assets held by the Custodian.
2. The Fund will cause to be delivered to the Custodian by any bank
(including, if the borrowing is pursuant to a separate agreement, the
Custodian) from which it borrows money for investment or for temporary or
emergency purposes using Securities held by the Custodian hereunder as
collateral for such borrowings, a notice or undertaking in the form then
employed by any such bank setting forth the amount which such bank will
loan to the Fund against delivery of a stated amount of collateral. The
Fund shall promptly deliver to the Custodian a Certificate specifying with
respect to each such borrowing: (a) the Series to which such borrowing
relates; (b) the name of the bank; (c) the amount and terms of the
borrowing, which may be set forth by incorporating by reference an
attached promissory note, duly endorsed by the Fund, or other loan
agreement; (d) the time and date, if known, on which the loan is to be
entered into; (e) the date on which the loan becomes due and payable; (f)
the total amount payable to the Fund on the borrowing date; (g) the market
value of Securities to be delivered as collateral for such loan, including
the name of the issuer, the title and the number of shares or the
principal amount of any particular Securities, and (h) a statement
specifying whether such loan is for investment purposes or for temporary
or emergency purposes and that such loan is in conformance with the
Investment Company Act of 1940 and the Fund's prospectus. The Custodian
shall deliver on the borrowing date specified in a Certificate the
specified collateral and the executed promissory note, if any, against
delivery by the lending bank of the total amount of the loan payable,
provided that such account conforms to the total amount payable as set
forth in the Certificate. The Custodian may, at the option of the lending
bank, keep such collateral in its possession, but such collateral shall be
subject to all rights therein given the lending bank by virtue of any
promissory note or loan agreement. The Custodian shall deliver such
Securities as additional collateral as may be specified in a Certificate
to collateralize further any transaction described in this paragraph. The
Fund shall cause all Securities released from collateral status to be
returned directly to the Custodian, and the Custodian shall receive from
time to time such return of collateral as may be tendered to it. In the
event that the Fund fails to specify in a Certificate the Series, the name
of the issuer, the title and number of shares of the principal amount of
any particular Securities to be delivered as collateral by the Custodian,
the Custodian shall not be under any obligation to deliver any Securities.
ARTICLE XIV
Concerning the Custodian
1. Except as hereinafter provided, neither the Custodian nor its nominee
shall be liable for any loss or damage, including counsel fees, resulting
from its action or omission to act or otherwise either hereunder or under
any Margin Account Agreement, except for any such loss or damage arising
out of its own negligence or willful misconduct. The Custodian may, with
respect to questions of law, apply for and obtain the advice and opinion
of counsel to the Fund or of its own counsel reasonably satisfactory to
the Fund and shall be fully protected with respect to anything done or
omitted by it in good faith in conformity with such advice or opinion,
provided that such action is not in violation of applicable federal or
state laws or regulations. Upon the prior agreement of the Fund, the cost
of any such advice or opinion will be borne by the Fund. The Custodian
shall be liable to the Fund for any loss or damage resulting from the use
of the Book-Entry System or any Depository arising by reason of any
negligence, misfeasance or willful misconduct on the part of the Custodian
or any of its employees or agents. In the event that the Custodian
determines that there has been any loss or damage involving Securities of
any Series of the Fund deposited with any Depository, the Custodian shall
assert whatever rights, and seek whatever remedies, it shall have against
the Depository with respect to such loss or damage. The Custodian shall
credit to any Series' account hereunder the amount, if any, as determined
by the Custodian, of the payments, if any, recovered by the Custodian from
any Depository as reimbursement for any such loss or damage involving any
Securities deposited by the Custodian hereunder with said Depository. In
the event the Custodian in connection with such a loss or damage neither
asserts such rights and seeks such remedies, nor credits to the Series'
account hereunder the amount which the Fund and the Custodian agree would
be recovered by any such Series from the Depository by the Custodian's
assertion of such rights and remedies, then, and only then, the Fund shall
be subrogated to the rights of the Custodian against the Depository.
2. Without limiting the generality of the foregoing, the Custodian shall be
under no obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any Securities purchased, sold, or
written by or for any Series of the Fund, the legality of the
purchase, sale or writing thereof, or the propriety of the amount paid
or received therefor;
(b) The legality of the sale or redemption of any Shares, or the propriety
of the amount to be received or paid therefor;
(c) The legality of the declaration or payment of any dividend by the
Fund;
(d) The legality of any borrowing by the Fund using Securities as
collateral;
(e) The legality of any loan of portfolio Securities, nor shall the
Custodian be under any duty or obligation to see to it that any cash
collateral delivered to it by a broker, dealer, or financial
institution or held by it at any time as a result of such loan of
portfolio Securities of any Series of the Fund is adequate collateral
for the Fund against any loss it might sustain as a result of such
loan. The Custodian specifically, but not by way of limitation, shall
not be under any duty or obligation periodically to check or notify
the Fund that the amount of such cash collateral held by it for the
account of any Series of the Fund is sufficient collateral, but such
duty or obligation shall be the sole responsibility of the Fund. In
addition, the Custodian shall be under no duty or obligation to see
that any broker, dealer or financial institution to which portfolio
Securities of any Series of the Fund are lent pursuant to Article IX
of this Agreement makes payment to it of any dividends or interest
which are payable to or for the account of such Series during the
period of such loan or at the termination of such loan, provided,
however, that the Custodian shall promptly notify the Fund in the
event that such dividends or interest are not paid and received when
due; or
(f) The sufficiency or value of any amounts of money and/or Securities
held in any Margin Account, Senior Security Account, Exempt Account or
Collateral Account in connection with transactions by any Series of
the Fund. In addition, the Custodian shall be under no duty or
obligation to see that any broker, dealer, futures commission merchant
or Clearing Member makes payment to any Series of the Fund of any
variation margin payment or similar payment which such Series may be
entitled to receive from such broker, dealer, futures commission
merchant or Clearing Member, or to see that any variation margin
payment received by the Custodian from any broker, dealer, futures
commission merchant or Clearing Member is the amount such Series is
entitled to receive, provided, however, that if any variation margin
payment which a Series is entitled to receive or any portion of such
payment is not received by the Custodian, the Custodian promptly shall
notify the Trust to that effect.
3. The Custodian shall not be liable for, or considered to be the Custodian
of, any money, whether or not represented by any check, draft, or other
instrument for the payment of money, received by it on behalf of a Series
of the Fund until the Custodian actually receives and collects such money
directly or by the final crediting of the account representing such
Series' interest in the Book-Entry System or the Depository.
4. The Custodian shall not be under any duty or obligation to take action to
effect collection of any amount due to the Fund from the Transfer Agent of
the Fund not to take any action to effect payment or distribution by the
Transfer Agent of the Fund of any amount paid by the Custodian to the
Transfer Agent of the Fund in accordance with this Agreement.
5. The Custodian shall not be under any duty or obligation to take action to
effect collection of any amount, if the Securities upon which such amount
is payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such
action by a Certificate and (ii) it shall be assured to its satisfaction
of reimbursement of its costs and expenses in connection with any such
action.
6. The Custodian may appoint one or more banking institutions as Depository
or Depositories, as sub-custodian or sub-custodians, or as Sub-Custodian
or Co-Custodians including, but not limited to, banking institutions
located in foreign countries, of Securities and moneys at any time owned
by a Series of the Fund, upon such terms and conditions as may be approved
in a Certificate or contained in an agreement executed by the Custodian,
the Fund and the appointed institution.
7. The Custodian shall not be under any duty or obligation (a) to ascertain
whether any Securities at any time delivered to, or held by it, for the
account of a Series of the Fund are such as properly may be held by the
Fund or such Series under the provisions of its then-current prospectus,
or (b) to ascertain whether any transactions by the Fund, whether or not
involving the Custodian, are such transactions as may properly be engaged
in by the Fund.
8. The Custodian shall be entitled to receive and the Fund agrees to pay to
the Custodian all out-of-pocket expenses and such compensation as may be
agreed upon from time to time between the Custodian and the Fund. The
Custodian may charge such compensation and any expenses incurred by the
Custodian in the performance of its duties with respect to a Series
against any money held by it for the account of such Series only in
accordance with paragraph 2(c) of Article III hereof. Unless and until the
Fund instructs the Custodian by a Certificate to apportion among the
Series in a specified manner any loss, damage, liability or expense for
which the Custodian is entitled to reimbursement under the provisions of
this Agreement, the Custodian shall allocate any such loss, damage,
liability or expense to each Series according to such Series' pro rata
share (based on the ratio of such Series' net asset value at the time of
the charge to the aggregate net asset value of all Series at that time) of
the amount of any such loss, damage, liability or expense. The expenses
for which the Custodian shall be entitled to reimbursement hereunder shall
include, but are not limited to, the expenses of sub-custodians and
foreign branches of the Custodian incurred in settling outside of New York
City transactions involving the purchase and sale of Securities of the
Fund.
9. The Custodian shall be entitled to rely upon any Certificate, notice or
other instrument in writing received by the Custodian and reasonably
believed by the Custodian to be a Certificate. The Custodian shall be
entitled to rely upon any Oral Instructions and any Written Instructions
actually received by the Custodian hereinabove provided for. The Fund
agrees to forward to the Custodian a Certificate or facsimile thereof
confirming such Oral Instructions or Written Instructions in such manner
so that such Certificate or facsimile thereof is received by the
Custodian, whether by hand delivery, telecopier or other similar device,
or otherwise, by the close of business on the business day on which such
Oral Instructions or Written Instructions are given to the Custodian. The
Fund agrees that the fact that such confirming instructions are not
received by the Custodian shall in no way affect the validity of the
transactions or enforceability of the transactions hereby authorized by
the Fund. The Fund agrees that the Custodian shall incur no liability to
the Fund in acting upon Oral Instructions or Written Instructions given to
the Custodian hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an Authorized
Person.
10. The Custodian shall be entitled to rely upon any instrument or notice in
writing received by the Custodian and reasonably believed by the Custodian
to be a certification furnished in accordance with a Margin Account
Agreement. Without limiting the generality of the foregoing, the Custodian
shall be under no duty to inquire into, and shall not be liable for, the
accuracy of any statements or representations contained in any such
instrument or other notice including, without limitation, any
specification of any amount to be paid to a broker, dealer, futures
commission merchant or Clearing Member.
11. The books and records pertaining to the Fund which are in the possession
of the Custodian shall be the property of the Fund. Such books and records
shall be prepared and maintained as required by the Investment Company Act
of 1940, as amended, and other applicable securities laws and rules and
regulations. The Fund, or the Fund's authorized representatives, shall
have access to such books and records during the Custodian's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by the Custodian to the Fund or
the Fund's authorized representative, and the Fund shall reimburse the
Custodian its expenses of providing such copies.
12. The Custodian shall provide the Fund with any report obtained by the
Custodian on the system of internal accounting control of the Book-Entry
System, the Depository, or O.C.C., and with such reports on its own
systems of internal accounting control as the Fund may reasonably request
from time to time.
13. The Fund agrees to indemnify the Custodian against and save the Custodian
harmless form all liability, claims, losses and demands whatsoever,
including attorney's fees, howsoever arising or incurred because of or in
connection with the Custodian's payment or non-payment of checks pursuant
to paragraph 6 of Article XII as part of any check redemption privilege
program of the Fund, except for any such liability, claim, loss and demand
arising out of the Custodian's own negligence or willful misconduct.
14. Subject to the foregoing provisions of this Agreement, the Custodian may
deliver and receive Securities, and receipts with respect to such
Securities, and arrange for payments to be made and received by the
Custodian in accordance with the customs prevailing from time to time
among brokers or dealers in such Securities.
15. The Custodian shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this
Agreement against the Custodian.
ARTICLE XV
Additional Series
In the event that the Trust establishes one or more series in addition to
the Thomson ▇▇▇▇▇▇▇▇ U.S. Government Fund, the Thomson ▇▇▇▇▇▇▇▇ Tax Exempt Fund,
the Thomson ▇▇▇▇▇▇▇▇ Income Fund, Thomson ▇▇▇▇▇▇▇▇ U.S. Government Fund, the
Thomson ▇▇▇▇▇▇▇▇ Growth Fund, the Thomson ▇▇▇▇▇▇▇▇ Opportunity Fund and the
Thomson ▇▇▇▇▇▇▇▇ Short-Term Fund, with respect to which it desires to have the
Custodian render services as custodian under the terms hereof, it shall so
notify the Custodian in writing at least thirty (30) days in advance of the sale
of shares of such series, and unless the Custodian declines in writing to
provide such services within fifteen (15) days of receipt of such notice, the
assets allocated to such series of shares shall be subject to this Agreement.
ARTICLE XVI
Termination
1. Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination,
which shall be not less than ninety (90) days after the date of giving of
such notice. In the event such notice is given by the Fund, it shall be
accompanied by a copy of a resolution of the Board of Trustees of the
Fund, certified by the Clerk or any Assistant Clerk, electing to terminate
this Agreement and designating a successor custodian or custodians, each
of which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. In the event such notice
is given by the Custodian, the Fund shall, on or before the termination
date, deliver to the Custodian a copy of a resolution of the Board of
Trustees of the Fund , certified by the Clerk or any Assistant Clerk,
designating a successor custodian or custodians. In the absence of such
designation by the Fund, the Custodian may designate a successor custodian
which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. Upon the date set forth
in such notice this Agreement shall terminate, and the Custodian shall
upon receipt of a notice of acceptance by the successor custodian on that
date deliver directly to the successor custodian all Securities and moneys
then owned by the Fund and held by it as Custodian, after deducting all
fees, expenses and other amounts for the payment or reimbursement to which
it shall then be entitled.
2. If a successor custodian is not designated by the Fund or the Custodian in
accordance with the preceding paragraph, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon the
delivery to the Fund by the Custodian of all Securities (other than
Securities held in the Book-Entry System which cannot be delivered to the
Fund) and moneys then owned by any Series of the Fund be deemed to be its
own custodian and the Custodian shall thereby be relieved of all duties
and responsibilities pursuant to this Agreement, other than the duty with
respect to Securities held in the Book-Entry System which cannot be
delivered to the Fund to hold such Securities hereunder in accordance with
this Agreement.
ARTICLE XVII
Miscellaneous
1. Annexed hereto as Appendix A is a Certificate signed by two of the present
Officers of the Fund under its seal, setting forth the names and the
signatures of the present Authorized Persons. The Fund agrees to furnish
to the Custodian a new Certificate in similar form in the event that any
such present Authorized Person ceases to be an Authorized Person or in the
event that other or additional Authorized Persons are elected or
appointed. Until such new Certificate shall be received, the Custodian
shall be fully protected in acting under the provisions of this Agreement
upon Oral Instruction or signatures of the present Authorized Persons as
set forth in the last delivered Certificate.
2. Annexed hereto as Appendix B is a Certificate signed by two of the present
Officers of the Fund under its seal, setting forth the names and the
signatures of the present Officers of the Fund. The Fund agrees to furnish
to the Custodian a new Certificate in similar form in the event any such
present Officer ceases to be an Officer of the Fund, or on the event that
other or additional Officers are elected or appointed. Until such new
Certificate shall be received, the new Custodian shall be fully protected
in acting under the provisions of this Agreement upon the signatures of
the Officers as set forth in the last delivered Certificate.
3. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed and delivered to it at its offices
at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as the
Custodian may from time to time designate in writing.
4. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Fund shall be sufficiently given if addressed
to the Fund and mailed or delivered to it at its office at the address for
the Fund first above written, or at such other place as the Fund may from
time to time designate in writing.
5. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement and approved by a resolution of the Board of Trustees of the
Fund.
6. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the
written consent of the Custodian, or by the Custodian without the written
consent of the Fund, authorized or approved by a resolution of the Fund's
Board of Trustees.
7. This Agreement shall be construed in accordance with the laws of the State
of New York.
8. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
9. A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of
the Fund as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees or shareholders
individually but are binding only upon the assets and property of the
Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THOMSON ▇▇▇▇▇▇▇▇ INVESTMENT TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, President
Attest: /s/ intials SKB
THE BANK OF NEW YORK
By: /s/ ▇. ▇▇▇▇▇▇▇
Attest: /s/ S. Sina
AMENDMENT NO. 1
Dated as of February 14, 1992
to the
AMENDED AND RESTATED CUSTODY AGREEMENT
Dated as of September 13, 1985
between
THOMSON FUND GROUP
and
THE BANK OF NEW YORK
THIS AMENDMENT NO. 1, dated as of February 14, 1992, is made between
THOMSON FUND GROUP (formerly, Thomson ▇▇▇▇▇▇▇▇ Investment Trust), a
Massachusetts business trust (the "Fund"), and THE BANK OF NEW YORK, a New York
corporation (the "Custodian").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into a Custody Agreement dated as of
February 23, 1984 which was amended and restated by an Amended and Restated
Custody Agreement dated September 13, 1985 (the "Custody Agreement"), pursuant
to which the Custodian agreed to act as custodian of all the Securities and
moneys at any time owned by any Series of the Fund during the period of the
Custody Agreement,
WHEREAS, pursuant to Article XV of the Custody Agreement, the parties
hereto desire to have the Custodian render services as custodian under the terms
of the Custody Agreement, as amended hereby, of all the Securities and money
owned by the Thomson Global Fund commencing on February 14, 1992 (the "Effective
Date") and
WHEREAS, the parties hereto desire to amend the Custody Agreement to (i)
accommodate the custody of assets of any Series of the Fund outside the United
States in accordance with Rule 17f-5 promulgated under the Investment Company
Act of 1940, as amended (the "1940") and (ii) add Participants Trust Company to
the definition of "Depository" as used in the Custody Agreement,
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree with one another as follows:
Reference to Definitions. Terms defined in the Custody Agreement, as
amended hereby, and not otherwise defined herein are used with the meaning
so defined.
Amendments. Effective upon the Effective Date, the Custody Agreement is
hereby amended as follows:
2.1 Addition of Article XV. A new Article is hereby added immediately
after Article XIV of the Custody Agreement as follows:
ARTICLE XV
DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF ANY SERIES HELD
OUTSIDE OF THE UNITED STATES
1. The Custodian is authorized and instructed to employ, as sub-custodian for
each Series' "foreign securities" (as defined in paragraph (c)(1) of Rule
17f-5 under the Investment Company Act of 1940, as amended ("foreign
securities")) and other assets, the foreign banking institutions and
foreign securities depositories and clearing agencies designated on
Exhibit D ("foreign sub-custodians") hereto to carry out their respective
responsibilities in accordance with the terms of the subcustodian
agreement between each such foreign sub-custodian and the Custodian,
copies of which have been previously delivered to the Fund and receipt of
which is hereby acknowledged (each such agreement, a "foreign
sub-custodian agreement"). The Custodian shall be liable for the acts and
omissions of each foreign sub-custodian constituting negligence or willful
misconduct in the conduct of its responsibilities under the terms of the
foreign sub-custodian agreement. Upon receipt of a Certificate, together
with a certified resolution of the Fund's Board of Trustees, the Custodian
and the Fund may agree to amend Exhibit D hereto from time to time to
designate additional foreign banking institutions and foreign securities
depositories and clearing agencies to act as foreign sub-custodians.
2. The Custodian hereby represents and warrants to the Fund that each foreign
subcustodian agreement previously delivered to the Fund governs the direct
relationship between the Custodian and the foreign sub-custodian with
respect to subcustody of each Series' foreign securities and other assets.
The Custodian agrees not to amend any such foreign subcustodian agreement
in a manner adverse to any Series' interest without the prior written
consent of the Fund.
3. The Custodian shall identify on its books as belonging to each Series of
the Fund the foreign securities of such Series held by each foreign
sub-custodian. At the election of the Fund, it shall be entitled to be
subrogated to the rights of the Custodian with respect to any claims by
the Fund or any Series against a foreign banking institution as a
consequence of any loss, damage, cost, expense, liability or claim if and
to the extent that the Fund or any Series has not been made whole for any
such loss, damage, cost, expense, liability or claim.
4. Upon request of the Fund, the Custodian will, pursuant to the terms of the
applicable foreign sub-custodian agreement, use reasonable efforts to
arrange for the independent accountants of the Fund to be afforded access
to the books and records of any foreign banking institution employed as
foreign sub-custodian insofar as such books and records relate to the
performance of such foreign banking institution under its agreement with
the Custodian on behalf of the Fund.
5. The Custodian will supply to the Fund from time to time, as mutually
agreed upon, statements in respect of the Securities and other assets of
each Series held by foreign sub-custodians, including but not limited to
an identification of foreign banking institutions having possession of
each Series' foreign securities and other assets and advices or
notifications of any transfers of foreign securities to or from each
custodial account maintained by a foreign sub-custodian for the Custodian
on behalf of the Series indicating, as to foreign securities acquired for
the Series, the identity of the foreign banking institution having
physical possession of such foreign securities.
6. The Custodian shall furnish annually to the Fund, as mutually agreed upon,
information concerning the foreign sub-custodians employed by the
Custodian. Such information shall be similar in kind and scope to that
furnished to the Fund in connection with the initial approval of the use
of foreign sub-custodians by the Custodian and, in any event, shall
include information pertaining to (i) the foreign sub-custodians'
financial strength, general reputation and standing in the countries in
which they are located and their ability to provide the custodial services
required, and (ii) whether the foreign sub-custodians would provide a
level of safeguards for safekeeping and custody of securities not
materially different from those prevailing in the United States. The
Custodian shall (a) monitor the day-to-day services and reports provided
to it by each foreign sub-custodian, (b) at least annually, obtain and
review the annual financial report published by such foreign sub-custodian
to determine that it meets the financial criteria of an "Eligible Foreign
Custodian" under Rule 17f-5(c)(2)(i) or (ii), and (c) on a periodic basis
inspect physically the operations of such foreign sub-custodian. In
addition, the Custodian will promptly inform the Fund in the event that
the Custodian learns that a foreign sub-custodian no longer satisfies the
financial criteria of an "Eligible Foreign Custodian" under Rule 17f-5 of
the Investment Company Act of 1940, as amended, or otherwise learns of a
material adverse change in the financial condition of a foreign
sub-custodian. Upon receipt of a Certificate from the Fund, the Custodian
shall cease the employment of any one or more of such foreign
sub-custodians for maintaining custody of the assets of one or more Series
as specified in such Certificate. The Custodian agrees that it will use
reasonable care in monitoring compliance by each foreign sub-custodian
with the terms of the relevant foreign sub-custodian agreement and that if
it has knowledge of any breach by such sub-custodian of such foreign
sub-custodian agreement having a material adverse effect on any Series it
will promptly notify the Fund of such breach. The Custodian also agrees to
use reasonable and diligent efforts to enforce its rights under the
relevant foreign sub-custodian agreement.
7. The provisions of this Article XV shall not apply where the custody of the
Fund's assets is maintained in a foreign branch of a banking institution
which is a "bank" as defined by Section 2(a)(5) of the Investment Company
Act of 1940, as amended, which meets the qualification set forth in
Section 26(a) of said Act.
8. The Custodian shall transmit promptly to the Fund all proxies, proxy
solicitation materials, notices, reports or other communications or
written information (including, without limitation, information concerning
pendency of calls and maturity, expiration or rights and notices of
exercises of calls) received by the Custodian from any foreign
sub-custodian with respect to any of the Fund's foreign securities.
9. Notwithstanding any provision of this Agreement to the contrary,
settlement and payment for securities received for the account of any
Series and delivery of Securities maintained for the account of such
Series may be effected in accordance with the customary or established
securities trading or securities processing practices and procedures in
the jurisdiction or market in which the transaction occurs, including,
without limitation, delivery of Securities to the purchaser thereof or to
a dealer therefor (or an agent for such purchaser or dealer) against a
receipt with the expectation of receiving later payment for such
securities from such purchaser or dealer.
2.2 Amendment to Article XIV, Section 6. Article XIV, Section 6, of the
Custody Agreement is hereby amended to add the following prefatory phrase:
"Subject to Article XV hereof,".
2.3 Renumbering of Certain Articles. Articles XV, XVI and XVII of the Custody
Agreement are hereby renumbered as Articles XVI, XVII, and XVIII,
respectively, and all references to such Articles contained in the Custody
Agreement are hereby modified accordingly.
2.4 Amendment to Article I, Section 8. The first sentence of Article 1,
Section 8, of the Custody Agreement is hereby amended by substituting
therefor the following sentence: " ' Depository' shall mean each of The
Depository Trust Company ("DTC") and Participants Trust Company ("PTC"),
each a clearing agency registered with the Securities and Exchange
Commission, its successor or successors and its nominee or nominees."
Addition of Thomson Global Fund. As contemplated by Article XV of the
Custody Agreement, upon the Effective Date, the parties hereto agree that
the Custodian shall render custodial services to the Thomson Global Fund
under the terms of the Custody Agreement as amended hereby.
Addition of Exhibit D. Exhibit D attached hereto is hereby incorporated
into and made a part of the Custody Agreement.
Representatives and Warranties. Each party hereto represent and warrants
to the other that: (a) it has full power and authority to enter into and
perform this Amendment in accordance with its terms; and (b) this
Amendment has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of it, enforceable in accordance with
the terms of this Amendment, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and other
laws of general application, the enforcement of creditors' rights
generally, rules of law governing specific performance injunctive relief
and other equitable remedies.
Board Resolutions. Within a reasonable time after execution hereof the
Fund shall furnish to the Custodian a certified copy of the resolution(s)
of the Fund's Board of Trustees approving this Amendment.
Miscellaneous. Except to the extent specifically amended hereby, the
provisions of the Custody Agreement shall remain unmodified, and the
Custody Agreement as amended hereby is newly confirmed as being in full
force and effect. Changes in or additions to the Custody Agreement, as
amended hereby, may be made if agreed to in writing by the parties hereto.
The Custody Agreement, as amended hereby, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes and prior understandings or agreements concerning the subject
matter hereof. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other
provision. This Amendment shall be governed by, and construed in
accordance with, the laws of New York. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first above written.
THOMSON FUND GROUP
Attest: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------- ---------------------
Title: President
THE BANK OF NEW YORK
Attest: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: \s\ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- -------------
Title: Senior Vice President
AMENDMENT
AMENDMENT made as of this 11th day of May, 1995 to that certain custody
agreement dated September 13, 1985 (the "Custody Agreement") between The Bank of
New York as Custodian (the "Custodian") and PIMCO Advisors Funds (the "Fund") a
Massachusetts business trust.
WHEREAS, the Custodian and Fund have previously entered into a Custody
Agreement;
WHEREAS, the Fund and the Custodian desire to amend the Custody Agreement
to provide for the electronic transmission of instructions from the Fund to the
Custodian; and
WHEREAS, the Trustees of the Fund have approved the amendment of the
Custody Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration for the mutual promises set forth, the
Fund and the Custodian agree to amend the Custody Agreement as follows:
1. The definition of the term "Certificate" in Article I is hereby amended to
read in its entirety as follows:
"Certificate" shall mean any notice, instruction, or any other instrument
in writing, authorized or required by this Agreement to be given to the
Custodian which is actually received by the Custodian and signed on behalf
of the Fund by any two Officers, and the term Certificate shall also
include instructions by the Fund to the Custodian communicated by a
Terminal Link."
2. The definition of the term "Officer" in Article I is hereby amended to
read in its entirety as follows:
"Officer" shall be deemed to include the President, any Vice President,
the Secretary, the Treasurer, the Controller, any Assistant Secretary, any
Assistant Treasurer, and any other person or persons, whether or not any
such other person is an officer or employee of the Fund, duly authorized
by the Trustees of the Fund to execute any certificate, instruction,
notice or other instrument on behalf of the Fund and listed in the
Certificate annexed hereto as Appendix B or such other Certificate as may
be received by the Custodian from time to time.
3. Article I is hereby further amended by the addition of the following
defined term:
"Terminal Link" shall mean an electronic data transmission link between
the Fund, an Intermediary, if any, (as hereinafter defined), and the
Custodian requiring in connection with each use of the Terminal Link or on
behalf of the Fund use of an authorization code provided by the Custodian
and at least two access codes established by the Fund. As used herein the
term "Intermediary" shall mean a third party that maintains a transmission
line to the Custodian and has been selected by the Fund to receive
electronic data transmissions from the Custodian or the Fund and forward
the same to the Fund or the Custodian, respectively.
4. A new Article shall be added to read in its entirety as follows:
1. The Terminal Link shall be utilized by the Fund only for the purpose
of the Fund providing Certificates to the Custodian with respect to
transactions involving Securities or for the transfer of money to be
applied to the payment of dividends, distributions or redemptions of
Fund Shares, and shall be utilized by the Custodian only for the
purpose of providing notices to the Fund. Such use shall commence
only after the Fund shall have delivered to the Custodian a
Certificate substantially in the form of Appendix I and shall have
established access codes and safekeeping procedures to safeguard and
protect the confidentiality and availability of such access codes
and shall have reviewed the safekeeping procedures established by
the Intermediary, if any, to assure that transmissions input by the
Fund, and only such transmissions, are forwarded by the
Intermediary, if any, to the Custodian without any alteration or
omission. Each use of the Terminal Link by the Fund shall constitute
a representation and warranty that the Terminal Link is being used
only for the purposes permitted hereby, that at least two Officers
have each utilized an access code, that such safekeeping procedures
have been established by the Fund, that the Intermediary, if any,
has safekeeping procedures reviewed by the Fund to assure that all
transmissions inputted by the Fund, and only such transmissions, are
forwarded by the Intermediary to the Custodian without any
alteration or omission by the Intermediary, and that such use does
not contravene the Investment Company Act of 1940, as amended, or
the rules or regulations thereunder.
2. The Fund shall obtain and maintain at its own cost and expense all
equipment and services, including, but not limited to communications
services, necessary for it to utilize the Terminal Link, and the
Custodian shall not be responsible for the reliability or
availability of any such equipment or services.
3. The Fund acknowledges that any data bases made available as part of,
or through the Terminal Link and any proprietary data, software,
processes, information and documentation (other than any such which
are or become part of the public domain or are legally required to
be made available to the public and excluding information
transmitted by means of, but not otherwise related to, the Terminal
Link) (collectively, the "Information"), are the exclusive and
confidential property of the Custodian. The Fund shall, and shall
cause others to which it discloses the Information, including,
without limitation the Intermediary, to keep the Information
confidential by using the same care and discretion it uses with
respect to its own confidential property and trade secrets, and
shall neither make nor permit any disclosure without the express
prior written consent of the Custodian.
4. Upon termination of this Agreement for any reason, the Fund shall
return to the Custodian any and all copies of the Information which
are in the Fund's possession or under its control, or which the Fund
distributed to third parties, including, without limitation, the
Intermediary. The provisions of this Article shall not affect the
copyright status of any of the Information which may be copyrighted
and shall apply to all Information whether or not copyrighted.
5. The Custodian reserves the right to modify the Terminal Link from
time to time without notice to the Fund or the Intermediary, if any,
except that the Custodian shall give the Fund notice not less than
90 days in advance of any modification which would materially
adversely affect the Fund's operation, and the Fund agrees that
neither the Fund not the Intermediary, if any, shall modify or
attempt to modify the Terminal Link without the Custodian's prior
written consent. The Fund acknowledges that any software or
procedures provided the Fund or the Intermediary as part of the
Terminal Link are the property of the Custodian and, accordingly,
the Fund agrees that any modifications to the Terminal Link, whether
by the Fund, the Intermediary or the Custodian's consent, shall
become the property of the Custodian.
6. Neither the Custodian nor any manufacturers, if any, and suppliers
it, the Fund, or the Intermediary, if any, utilized in connection
with the Terminal Link makes any warranties or representations,
express or implied, in fact or in law, including but not limited to
warranties of merchantability and fitness for a particular purpose.
7. The Fund will cause its Officers and employees, and the Custodian
will cause its officers and employees to treat the authorization
codes and access codes applicable to Terminal Link with extreme
care, and the Fund and the Custodian each irrevocably authorizes the
other to act in accordance with and rely on Certificates and notices
received by it through the Terminal Link. The Fund and the Custodian
each acknowledge that it is its responsibility to assure that only
its Officers and authorized persons of the Intermediary, if any, in
the case of the Fund, and authorized persons in the case of the
Custodian use the Terminal Link on its behalf, and that a party
shall not be responsible nor liable for use of the Terminal Link on
behalf of the other party by persons other than such person or
Officers, or by only a single Officer, not for any alteration,
omission, or failure to promptly forward by the Intermediary, if
any.
8(a) Except as otherwise specifically provided in Section 8(b) of this
Article, the Custodian shall have no liability for any losses,
damages, injuries, claims, costs or expenses arising out of or in
connection with any failure, malfunction or other problem relating
to Terminal Link for money damages suffered as the direct result of
the negligence of the Custodian in an amount not exceeding for any
incident $100,000 provided, however, that the Custodian's liability
under this Section 8 shall be reduced to the extent any failure by
the Fund to comply with the provisions of Section 10 contributed to
such loss, damage, injury, claim, cost or expense.
8(b) The Custodian's liability for its negligence in executing or failing
to execute in accordance with a Certificate received through
Terminal Link shall be only with respect to a transfer of funds
which is not made in accordance with such Certificate after such
Certificate shall have been duly acknowledged by the Custodian, but
such liability shall be reduced or eliminated to the extent any
failure by the Fund to comply with the provisions of Section 11 of
this Article contributed to all or any part of the failure to
transfer, and the Custodian's liability shall be limited to (i)
restoration of the principal amount mistransferred, if and to the
extent that the Custodian would be required to make such restoration
under applicable law, and (ii) the lesser of (A) the Fund's actual
pecuniary loss incurred by reason of its loss of use of the
mistransferred funds or the funds which were not transferred, as the
case may be, or (B) compensation for the loss of the use of the
mistransferred funds or the funds which were not transferred, as the
case may be, at a rate per annum equal to the average federal funds
rate as computed from the Federal Reserve Bank of New York's daily
determination of the effective rate for federal funds, for the
period during which the Fund has lost use of such funds. In no event
shall the Custodian have any liability for failure to execute in
accordance with a Certificate a transfer of funds where the
Certificate is received by the Custodian through Terminal Link other
than through the applicable transfer module for the particular
instructions contained in such Certificate.
9. Without limiting the generality of the foregoing, in no event shall
the Custodian or any manufacturer or supplier of its computer
equipment, software or services relating to the Terminal Link be
responsible for any special, indirect, incidental or consequential
damages which the Fund or the Intermediary may incur or experience
by reason of its use of the Terminal Link even if the Custodian or
any manufacturer or supplier has been advised of the possibility of
such damages, nor with respect to the use of the Terminal Link shall
the Custodian or any such manufacturer or supplier be liable for
acts of God, or with respect to the following to the extent beyond
such person's reasonable control: machine or computer breakdown or
malfunction, interruption or malfunction of communication
facilities, labor difficulties or any other similar or dissimilar
labor difficulties or any other similar or dissimilar cause.
10. The Fund shall notify the Custodian of any errors, omissions or
interruptions in, or delay or unavailability of, the Terminal Link
as promptly as practicable, and in any event within 24 hours after
the earliest of (i) discovery thereof, or (ii) in the case of any
error, the date of actual receipt of the earliest notice which
reflects such error, it being agreed that discovery and receipt of
notice may only occur on a business day. The Custodian shall
promptly advise the Fund or the Intermediary whenever the Custodian
learns of any errors, omissions or interruption in, or delay or
unavailability of, the Terminal Link.
11. The Custodian shall acknowledge to the Fund or to the Intermediary,
if any, by use of the Terminal Link, receipt of each Certificate the
Custodian receives through the Terminal Link, and in the absence of
such acknowledgment, the Custodian shall not be liable for any
failure to act in accordance with such Certificate and the Fund may
not claim that such Certificate was received by the Custodian. Such
verification, which may occur after the Custodian has acted upon
such Certificate, shall be accomplished on the same day on which
such Certificate is received.
5. References in this Amendment to the Custody Agreement are to the Custody
Agreement as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers, thereunto duly authorized and their respective
seals to be hereto affixed as of the day and year first above written.
NOTICE
The Agreement and Declaration of Trust of the Fund is on file with the
Secretary of State of The Commonwealth of Massachusetts and notice is hereby
given that this Agreement is executed on behalf of the Trustees of the Fund as
Trustees and not individually and that the obligations of this Agreement are not
binding upon the Trustees or the holders of shares of any series of the Fund
individually but are binding only upon the assets and property of the relevant
series of the Fund.
THE BANK OF NEW YORK
[SEAL]
Attest:
By: \s\ ▇▇▇▇ Recardi
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Senior Vice President
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
PIMCO ADVISORS FUNDS
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
President