EXHIBIT 99.g
CUSTODY AGREEMENT
[logo]
THE BANK OF CALIFORNIA
CUSTODY AGREEMENT
This Agreement is entered into as of Nov. 30, 1990, between Pasadena
Investment Trust (the "Trust"), a Massachusetts business trust, having its
principal office and place of business at 000 Xxxxx Xxxxxxxx Xxxx., Xxxxxxxx, XX
00000-0000 and The Bank of California, National Association (the "Custodian"), a
National Banking Association organized under the laws of the United States with
its principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX
00000.
In consideration of the mutual promises set forth below, the Trust and the
Custodian agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this Agreement, the
words and phrases set forth below shall have the following meanings,
unless the context otherwise requires:
1.2 "Authorized Person" shall be deemed to include the President,
and any Vice President, the Secretary, the Assistant Secretary,
the Treasurer and any Assistant Treasurer of the Trust, or any
other person, including persons employed by the Investment
Manager, whether or not any such person is an officer of the
Trust, duly authorized by the Board of Trustees of the Trust to
give Oral Instructions and Written Instructions on behalf of the
Trust and listed in the certification annexed hereto as Appendix A
or such other certification as may be received by the Custodian
from time to time.
1.2 "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.
1.3 "Declaration of Trust" shall mean the Declaration of Trust of
the Trust as now in effect and as the same may be amended from
time to time.
1.4 "Depository" shall mean The Depository Trust Company ("DTC"),
a clearing agency registered with the Securities and Exchange
Commission under Section 17(a) of the Securities Exchange Act of
1934, as amended, its successor or successors and its nominee or
nominees, in which the Custodian is hereby specifically authorized
to make deposits. The term "Depository" shall further mean and
include any other person to be named in Written Instructions
authorized to act as a depository under the 1940 Act, its
successor or successors and its nominee of nominees.
1.5 "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principal by the Government of the United States or agencies
or
_400 CALIFORNIA XXXXXX x X X XXX 00000 x XXX XXXXXXXXX
x XXXXXXXXXX 00000 o 415 765 0400
instrumentalities thereof, and repurchase and reverse repurchase agreements with
reverse repurchase agreements with respect to any of the foregoing types of
securities, commercial paper, bank certificates of deposit, bankers' acceptances
and short-term corporate obligations, where the purchase or sale of such
securities normally requires settlement in federal funds on the same day as such
purchase or sale.
1.6 "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person.
1.7 "Prospectus" shall mean the Series' current prospectus and
statement of additional information relating to the registration
of the Series' Shares under the Securities Act of 1933, as
amended.
1.8 "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities and investments from time to time owned by each
Series.
1.9 "Shares" refers to the shares of beneficial interest of a
Series of the Trust.
1.10 "Series" refers to Funds shown on Schedule A, attached hereto
and made a part hereof by this reference, and any such other
Series as may from time to time be created and designated in
accordance with the provisions of the Declaration of Trust.
1.11 "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Trust.
1.12 "Written Instructions" shall mean a written or electronic
communication 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 communication is able to
verify through codes or otherwise with a reasonable degree of
certainty the authenticity of the sender of such communication.
1.13 The "1940 Act" refers to the Investment Company Act of 1940,
and the Rules and regulations thereunder, all as amended from time
to time.
2. Appointment of Custodian.
2.1 The Trust hereby constitutes and appoints the Custodian as
Custodian of all the Securities and moneys at the time owned by or
in the possession of the Trust and specifically allocated to a
Series during the period of this Agreement.
223J 11/19/90 -2
2.2 The Custodian hereby accepts appointment as such Custodian for
the Trust and any Series and agrees to perform the duties thereof
as hereinafter set forth.
3. Compensation.
3.1 The Trust will compensate the Custodian for its services
rendered under this Agreement in accordance with the fees set
forth in the Fee Schedule annexed hereto as Schedule Band
incorporated herein by this reference.
3.2 The parties hereto will agree upon the compensation for acting
as Custodian for any Series hereafter established and designated,
and at the time that the Custodian commences serving as such for
said Series, such agreement shall be reflected in a Fee Schedule
for that Series, dated and signed by an officer of each party
hereto, which shall be attached to Schedule A of this Agreement.
3.3 Any compensation agreed to hereunder may be adjusted from time
to time by attaching to Schedule B of this Agreement a revised Fee
Schedule, dated and signed by Authorized Officer of each party
hereto.
3.4 The Custodian will xxxx each Series as soon as practicable
after the end of each calendar quarter, and said xxxxxxxx will be
detailed in accordance with the Fee Schedule for each Series. The
Trust will promptly pay to the Custodian the amount of such
billing. In the event such xxxx is not promptly paid, the
Custodian may charge against any money specifically allocated to a
Series such compensation an4 any expenses incurred by the
Custodian in the performance of its duties pursuant to such
agreement with respect to such Series. The Custodian shall also be
entitled to charge against any money held by it and specifically
allocated to a Series the amount of any loss, damage, liability or
expense incurred with respect to such Series, including counsel
fees, for which it shall be entitled to reimbursement under the
provision of this Agreement.
The expenses which the Custodian may charge against such account
include, but are not limited to, the expenses of Sub-Custodians
and foreign branches of the Custodian incurred in settling
transactions outside of San Francisco or New York City involving
the purchase and sale of Securities of any Series.
4. Custody of Cash and Securities.
4.1 Receipt and Holding of Assets. The Trust will deliver or cause
to be delivered to the Custodian all Securities and moneys owned
by it, including cash received from the issuances of its Shares,
at any time during the period of this Agreement and shall specify
the Series to which the Securities and moneys are to be
specifically allocated. The Custodian shall segregate and keep
apart on its books, the assets of each Series separate and apart,
including separate identification of Securities held in the
Book-Entry System. The Custodian will not be responsible for such
Securities and moneys until actually received by it. The Trust
shall instruct the Custodian from time to time in its sole
discretion, by means of Written Instructions, or, in connection
with the purchase or sale of Money Market Securities, by means of
Oral Instructions or Written Instructions, as to the manner in
which and in what amounts Securities and moneys of a Series are to
be deposited on behalf of such Series in the Book-Entry System or
the Depository and specifically allocated on the books of the
Custodian to such Series; provided, however, that prior to the
deposit of Securities of a Series in the Book-Entry System or the
Depository, including a deposit in connection with the settlement
of a purchase or sale, the Custodian shall have received Written
Instructions specifically approving such deposits by the Custodian
in the Book-Entry System or the Depository. Securities and moneys
of the Trust deposited in the Book-Entry System or the Depository
will be represented in 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.
4.2 Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for each Series and shall credit to
the separate account of each Series all moneys received by it for
the account of such Series and shall disburse the same only:
4.2.1 In payment for Securities purchased for such Series,
as provided in Section 5 hereof;
4.2.2 In payment of dividends or distributions with respect
to the Shares of such Series, as provided in Section 7
hereof;
4.2.3 In payment of original issue or other taxes with
respect to the Shares of such Series, as provided in Section
8 hereof:
4.2.4 In payment for Shares which have been redeemed by such
Series, as provided in Section 8 hereof;
4.2.5 Pursuant to Written Instructions, or with respect to
Money Market Securities, Oral Instructions or Written
Instructions, setting forth the name of such Series, the
name
223J 11/19/90 -4
and address of the person to whom the payment is to be made
the amount to be paid and the purpose for which payment is
to be made; or
4.2.6 In payment of fees and in reimbursement of the
expenses and liabilities of the Custodian attributable to
such Series, as provided in Section 11.8 hereof.
4.3 Confirmation and Statements. Promptly after the close of
business each day, the Custodian shall make available to the Trust
on-line information with respect to all transfers to and from the
account of a Series during that day. The custodian need not send
written confirmation or a summary of all such transfers to or from
the account of each Series. Where Securities purchased by a Series
are in a fungible bulk of Securities registered in the name of the
Custodian (or its nominee) or shown on the Custodian's account on
the books of the Depository or the Book-Entry System, the
Custodian shall by book entry or otherwise identify the quantity
of those securities belonging to such Series. At least monthly,
the Custodian shall furnish the Trust with a detailed statement of
the Securities and moneys held for each Series under this
Agreement.
4.4 Registration of Securities and Physical Separation.
All Securities held for a Series 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 for a Series may be registered in the
name of that Series, 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 Book-Entry System or the
Depository of their successor or successors, or their nominee of
nominees. When a reference is made in this Agreement to an action
to be taken by Custodian it is understood by the parties that the
action may be taken directly or in the case of book-entry
securities, through the appropriate depository. The Trust 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 in the name of
the Book-Entry System or the Depository, any Securities which it
may hold for the account of a Series and which may from time to
time be registered in the name of a Series. The Custodian (or its
sub-custodians) shall hold all such Securities specifically
allocated to a Series which are not held in the Book-Entry System
or the Depository in a separate account for such series in the
name of such Series physically segregated at all times from those
of any other person or persons.
4.5 Collection: of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by Written
Instructions, the Custodian shall with respect to all Securities
held for a Series in accordance with this Agreement:
223J 11/19/90 -5
4.5.1 Collect all income due or payable;
4.5.2 Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired, or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Trust or a Series
for monitoring or ascertaining of any call, redemption or
retirement date with respect to put bonds which are owned by a
Series and held by the Custodian or its nominee. Nor shall the
Custodian have any responsibility or liability to the Trust to a
Series for any loss by a Series for any missed payment or other
default resulting therefrom unless the Custodian received timely
notification, which shall not be less than 5 business days, from
the Trust or the Series specifying the time, place and manner for
the presentment of any put bond owned by a Series and held by the
Custodian or its nominee. The Custodian shall not be responsible
and assumes no liability to the Trust or a Series for the accuracy
or completeness of any notification the Custodian shall provide to
the Trust or a series with respect to put bonds;
4.5.3 Execute 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
4.5.4 Hold for the account of each Series all rights and other
Securities issued with respect to any Securities held by the
Custodian hereunder for such Series.
4.6 Delivery of Securities and Evidence of Authority. Upon receipt of
Written Instructions and not otherwise, except for subparagraphs 5, 6, 7,
and 8 which may be effected by Oral or Written Instructions, the Custodian
shall:
4.6.1 Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorization, and any other instruments
whereby the authority of the Trust as owner of any Securities may
be exercised;
4.6.2 Deliver or cause to be delivered any Securities held for a
Series 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;
4.6.3 Deliver or cause to be delivered any Securities held for a
Series to any protective committee, reorganization committee
223J 11/19/90 -6
or other person in connection with the reorganization,
refinancing, merger, consolidation or recapitalization or sale of
assets of any corporation, and receive and hold under the terms of
this Agreement in the separate account for each Series such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
4.6.4 Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of a Series
and take such steps as shall be stated in said Written
Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust;
4.6.5 Deliver Securities owned by any Series upon sale of such
Securities for the account of such Series pursuant to Section 5;
4.6.6 Deliver Securities owned by any Series upon the receipt of
payment in connection with any repurchase agreement related to
such Securities entered into by such Series;
4.6.7 Deliver Securities owned by any Series to the issuer thereof
or its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such case
the cash or other consideration is be delivered to the Custodian.
Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Trust or to a Series for monitoring or
ascertaining of any call, redemption or retirement date with
respect to put bonds which are owned by a Series and held by the
Custodian or its nominee. Nor shall the Custodian have any
responsibility or liability to the Trust or a Series for any loss
by a Series for any missed payment or other default resulting
therefrom unless the Custodian received timely notification, which
shall be not less than 5 business days, from the Trust or the
Series specifying the time, place and manner for the presentment
of any put bond owned by a Series and held by the Custodian or its
nominee. The Custodian shall not be responsible and assumes no
liability to the Trust or a Series for the accuracy or
completeness of any notification the Custodian may furnish to the
Trust or the Series with respect to put bonds;
4.6.8 Deliver Securities owned by any Series in connection with
any loans of Securities made by such Series but only against
receipt of adequate collateral as agreed upon from time to time by
the Custodian and the Trust which may be in any form permitted
under the 1940 Act or any interpretations thereof issued by the
Securities and Exchange Commission or its staff;
223J 11/19/90 -7
4.5.9 Deliver Securities owned by any Series for delivery as
security in connection with any borrowings by such Series
requiring a pledge of Series assets, but only against receipt of
amount borrowed;
4.5.10 Deliver Securities owned by any Series upon receipt of
instructions from such Series for delivery to the Transfer Agent
or to the holders of Shares of such Series in connection with
distributions in kind, as may be described from time to time in
the Series' Prospectus, in satisfaction of requests by holders of
Shares for repurchase or redemption; and
4.5.11 Deliver Securities owned by any Series for any other proper
business purpose, but only upon receipt of, in addition to Written
Instructions, a certified copy of a resolution of the Board of
Trustees signed by an Authorized Person and certified by the
Secretary or Assistant Secretary of the Trust, specifying the
Securities to be delivered, setting forth the purpose for which
such delivery is to be made, declaring such purpose to be a proper
business purpose, and naming the person or persons to whom
delivery of such Securities shall be made.
4.7 Endorsement and Collection of Checks. Etc. The Custodian is
hereby authorized to endorse and collect all checks, drafts or other
orders for the payment of money received by the Custodian for the account
of a Series.
5. Purchase and Sale of Investments of the Series.
5.1 Promptly after each purchase of Securities for a Series, the Trust
shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, Written Instructions,
and (ii) with respect to each purchase of Money Market Securities, either
Written Instructions, in either case specifying with respect to each
purchase: (1) the name of the Series to which such Securities are to be
specifically allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or the principal amount purchased and
accrued interest, if any; (4) the date of purchase and settlement; (5) the
purchase price per unit; (6) the total amount payable upon such purchase;
(7) the name of the person from whom or the broker through whom the
purchase was made, if any; (8) whether or not such purchase is to be
settled through the Book-Entry System or the Depository; and (9) whether
the Securities purchased are to be deposited in the Book-Entry System or
the Depository. The Custodian shall receive all Securities purchased by or
for a Series and upon receipt of such Securities shall payout of the
moneys held for the account of such Series the total amount payable upon
such purchase, provided that the same conforms to the total amount payable
as set forth in such Written or Oral Instructions.
223J 11/19/90 -8
5.2 Promptly after each sale of Securities of a Series, the Trust shall
deliver to the Custodian (i) with respect to each sale of Securities which
are not Money Market Securities, Written Instructions, and (ii) with
respect to each sale of Money Market Securities, either Written or Oral
Instructions, in either case specifying with respect to such sale: (1) the
name of the Series to which the Securities sold were specifically
allocated; (2) the name of the issuer and the title of the Securities; (3)
the number of shares or principal amount sold, and accrued interest, if
any; (4) the date of sale; (5) the sale price per unit: (6) the total
amount payable to the Series upon such sale; (7) the name of the broker
through whom or the person to whom the sale was made: and (8) whether or
not such sale is to be settled through the Book-Entry System or the
Depository. The Custodian shall deliver or cause to be delivered the
Securities to the broker or other person designated by the Trust upon
receipt of the total amount payable to such Series upon such sale,
provided that the same conforms to the total amount payable to such Series
as set forth in such Written or such Oral Instructions. Subject to the
foregoing, the Custodian may accept payment in such form as shall be
satisfactory to it, and may deliver Securities and arrange for payment in
accordance with the customs prevailing among dealers in Securities.
6. Lending of Securities
If any Series is permitted as disclosed in its current Prospectus or
Statement of Additional Information to lend Securities specifically
allocated to that Series, within 24 hours after each loan of Securities,
the Trust shall deliver to the Custodian Written Instructions specifying
with respect to each such loan; (1) the Series to which the loaned
Securities are specifically allocated: (2) the name of the issuer and
title of the Securities: (3) the number of shares or the principal amount
loaned; (4) the date of loan and delivery: (5) the total amount to be
delivered to the Custodian, and specifically allocated to such Series
against the loan of the Securities, including the amount of cash
collateral and the premium, if any, separately identified: (6) the name of
the broker, dealer or financial institution to which the loan was made;
and (7) whether the Securities loaned are to be delivered through the
Book-Entry System or the Depository.
Promptly after each termination of a loan of Securities specifically
allocated to a Series, the Trust shall deliver to the Custodian Written
Instructions specifying with respect to each such loan termination and
return of Securities: (1) the name of the Series to which such loaned
Securities are specifically allocated: (2) the name of the issuer and the
title of the Securities to be returned; (3) the number of shares or the
principal amount to be returned: (4) the date of termination: (5) a
specific identification of the Securities held
223J 11/19/90 -9
as collateral on the total amount to be delivered by the Custodian
including the total amount to be delivered by the Custodian including the
cash collateral; (6) the name of the broker, dealer or financial
institution from which the Securities will be returned; (7) whether such
return is to be effected through the Book-Entry System or the Depository;
and (8) the name of the broker, dealer or financial institution to which
the cash or Securities collateral is to 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 money specifically allocated to such Series, the
total amount payable upon such return of Securities as set forth in the
Written Instruction. Securities returned to the Custodian shall be held as
they were prior to such loan.
7. Payment of Dividends or Distributions.
7.1 The Trust shall furnish to the Custodian the resolution of the Board
of Trustees of the Trust certified by the Secretary or Assistant Secretary
(i) authorizing the declaration of dividends or distribution with respect
to a Series on a specified periodic basis and authorizing the Custodian to
rely on Oral or Written Instructions specifying 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 to the shareholders of record as
of the record date and the total amount payable per share to the
shareholders of record as of the record date and the total amount payable
to the Transfer Agent on the payment date, or (ii) setting forth the date
of declaration of any dividend or distribution by a Series, the date of
payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to the
shareholders of record as of the record date and the total amount payable
to the Transfer Agent on the payment date.
7.2 Upon the payment date specified in such resolution, Oral Instructions,
or Written Instructions, as the case may be, the Custodian shall payout
the moneys specifically allocated to and held for the account of the
appropriate Series the total amount payable to the Transfer Agent of the
Trust.
8. Sale and Redemption of Shares of Series.
8.1 Whenever the Trust shall sell any Shares of a Series, the Trust shall
deliver or cause to be delivered to the Custodian Written Instructions
duly specifying:
8.1.1 The name of the Series whose Shares were sold;
223J 11/19/90 -10
8.1.2 The number of Shares sold, trade date, and price; and
8.1.3 The amount of money to be received by the Custodian for the
sale of such Shares and specifically allocated to such Series.
8.2 Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Series specified in
subparagraph 8.1.1 of this Section 8.
8.3 Upon issuance of any Shares of a Series in accordance with the
foregoing provisions of this Section 8, the Custodian shall pay, out of
the moneys specifically allocated and held for the account of such Series,
all original issue or other taxes required to be paid in connection with
such issuance upon the receipt of Written Instructions specifying the
amount to be paid.
8.4 Except as provided hereafter, whenever any Shares of a Series are
redeemed, the Trust shall cause the Transfer Agent to promptly furnish to
the Custodian Written Instructions, specifying:
8.4.1 The name of the Series whose Shares were redeemed;
8.4.2 The number of Shares redeemed; and
8.4.3 The amount to be paid for the Shares redeemed.
The Custodian understands that the information contained in such
Written Instructions will be derived from the redemption of Shares
as reported to the Trust by the Transfer Agent.
8.5 Upon receipt from the Transfer Agent of advice setting forth the
number of Shares of a Series received by the Transfer Agent for redemption
and that such Shares are valid and in good form for redemption, the
Custodian shall make payment to the Transfer Agent out of the moneys
specifically allocated to and held for the account of the Series specified
in subparagraph (1) of paragraph (d) of this Section 8 of the total amount
specified in Written Instructions issued pursuant to paragraph (d) of this
Section 8.
8.6 Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Trust, the
Custodian, unless otherwise instructed by Written Instructions shall, upon
receipt of advice from the Trust or its agent stating 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 specifically allocated to the Trust in such
advice for such purpose.
223J 11/19/90 -11
9. Indebtedness.
9.1 The Trust will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Trust borrows money for temporary
administrative or emergency purposes using Securities as collateral for
such borrowings, a notice or undertaking in the form currently employed by
any such bank setting forth the amount which such bank will loan to the
Trust against delivery of a stated amount of collateral. The Trust shall
promptly deliver to the Custodian Written or Oral Instructions stating
with respect to each such borrowing: (1) the name of the Series for which
the borrowing is to be made; (2) the name of the bank; (3) the amount and
terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Trust, or
other loan agreement; (4) the time and date, if known, on which the loan
is to be entered into (the "borrowing date"); (5) the date on which the
loan becomes due and payable; (6) the total amount payable to the Trust
for the separate account of the Series on the borrowing date;
(7) 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; (8) whether the
Custodian is to deliver such collateral through the Book-Entry System or
the Depository; and (9) a statement that such loan is in conformance with
the 1940 Act and the Series' Prospectus.
9.2 Upon receipt of the Written or Oral Instructions referred to in
subparagraph (a) above, the Custodian shall deliver on the borrowing date
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 the same conforms to the total amount payable as set forth
in the Written or Oral Instructions. 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 as additional collateral in the manner directed by the Trust from
time to time such Securities specitically allocated to such Series as may
be specified in Written or Oral Instructions to collateralize further any
transaction described in this Section 9. The Trust 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 Trust fails
to specify in Written or Oral Instructions all of the information required
by this Section 9, the Custodian shall not be under any obligation to
deliver any Securities. Collateral returned to the Custodian shall be held
hereunder as it was prior to being used as collateral.
223J 11/19/90 -12
10. Persons Having Access to Assets of the Series.
10.1 No Trustee, officer, employee or agent of the Trust, and no officer,
director, employee or agent of the Advisor, shall have physical access to
the assets of the Trust held by the Custodian or be authorized or
permitted to withdraw any investments of the Trust, nor shall the
Custodian deliver any assets of the Trust to any such person. No officer,
director, employee or agent of the Custodian who holds any similar
position with the Trust, the Advisor shall have access to the assets of
the Trust.
10.2 The individual employees of the Custodian duly authorized by the
Board of Directors of the Custodian to have access to the assets of the
Trust are listed in the certification annexed hereto as Appendix C. The
Custodian shall advise the Trust of any change in the individuals
authorized to have access to the assets of the Trust by written notice to
the Trust accompanied by a certified copy of the authorizing resolution
for the Custodian's Board of Directors approving such change.
10.3 Nothing in this Section 10 shall prohibit any officer, employee or
agent of the Trust, or any officer, director, employee or agent of the
Advisor, from giving Oral Instructions or Written Instructions to the
Custodian so long as it does not result in delivery of or access to assets
of the trust prohibited by paragraph (a) of this Section 10.
11. Concerning the Custodian.
11.1 Standard of Conduct. The Custodian shall not be responsible for the
title, validity or genuineness of any property or evidence of title
thereto received by it or delivered by it pursuant to this Agreement and
reasonably believed by it to be valid or genuine and shall be held
harmless in acting upon proper instructions, resolutions, any notice,
request, consent, certificate or other instrument reasonably believed by
it to be genuine and to be signed by the proper party or parties and shall
be entitled to receive as conclusive proof of any fact or matter required
to be ascertained by it hereunder, a certificate signed by the President,
a Vice President, the Treasurer, the Secretary or an Assistant Secretary
of the Trust. The Custodian may receive and accept a resolution as
conclusive evidence (a) of the authority of any person to act in
accordance with such vote or (b) of any determination or of any action by
the Board of Trustees pursuant to the Declaration of Trust as described in
such vote, and such vote may be considered as in full force and effect
until receipt by the Custodian of written notice from the Secretary or an
Assistant Secretary to the contrary.
The Custodian shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Trust) on all matters, and shall be
without liability for any action reasonably taken or
223J 11/19/90 -13
omitted pursuant to such advice. Provided, however, that if such reliance
involves a potential material loss to the Trust, the Custodian shall
advise the Trust of any such actions to be taken in accordance with such
advice of counsel to the Custodian.
The Custodian shall be held to the exercise of reasonable care in
carrying out the provisions of this Agreement but shall be liable only for
its own negligent or bad faith acts or willful misconduct or failures to
act by the Custodian and it agents or Employees. The Trust shall indemnify
the Custodian and hold it harmless from and against all losses,
liabilities, demands, claims, actions, expenses, attorneys' fees, and
taxes with respect to each Series which the Custodian may suffer or incur
on account of being Custodian hereunder except to the extent that such
losses, liabilities, demands, claims, actions, expenses, attorneys fees or
taxes arise from the Custodian's own gross negligence or bad faith.
Notwithstanding the foregoing the Custodian shall be liable to the Trust
for any loss or damage resulting from the use of the Book-Entry System or
the Depository arising by reason of any negligence, misfeasance or
misconduct on the part of the Custodian or any of its employees or agents.
If a Series requires the Custodian to take any action with respect to
Securities, which action involves the payment of money or which action
may, in the opinion of the Custodian, result in the Custodian or its
nominee assigned to such Series being liable for the payment of money or
incurring liability of some other form, such Series, as a prerequisite to
requiring the Custodian to take such action, shall, prior to the Custodian
taking such action, provide indemnity in writing to the Custodian in an
amount and form satisfactory to it.
11.2 Limit of Duties. Without limiting the generality of the foregoing,
the Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
11.2.1 The validity of the issue of any Securities purchased by any
Series, the legality of the purchase thereof, or the propriety of the
amount paid therefor;
11.2.2 The legality of the sale of any Securities by any Series, or the
propriety of the amount for which the same are sold;
11.3.3 The legality of the issue or the sale of any Shares, or the
sufficiency of the amount to be received therefor;
11.3.4 The legality of the redemption of any Shares, or the propriety
of the amount to be paid therefor;
223J 11/19/90 -14
11.3.5 The legality of the declaration or payment of any dividend or
other distribution of any Series;
11.3.6 The legality of any borrowing for temporary or emergency
administrative purposes.
11.4 No Liability Until Receipt. 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 any Series until the Custodian actually
receives and collects such money directly or by the final crediting of the
account representing the Trust's interest in the Book-Entry System or the
Depository.
11.5 Collection Where Payment Refused. 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 (a)
it shall be directed to take such action by Written Instructions and (b)
it shall be assured to its satisfaction of reimbursement of its costs and
expenses in connection with any such action.
11.6 Appointment of Agents and Sub-Custodians. The Custodian may appoint
one or more banking institutions, including but not limited to banking
institutions located in foreign countries, to act as Depository or
Depositories or as Sub-Custodian or as Sub-Custodians of Securities and
moneys at any time owned by any Series, upon terms and conditions
specified in Written Instructions. The Custodian shall use reasonable care
in selecting a Depository and/or Sub-Custodian located in a country other
than the United States ("Foreign Sub-Custodian"), and shall oversee the
maintenance of any Securities or moneys of the Trust by any Foreign
Sub-Custodian.
11.7 No Duty to Ascertain: Authority. The Custodian shall not be under any
duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for the Trust and specifically allocated to a
Series are such as may properly be held by the Series and specifically
allocated to such Series under the provisions of the Declaration of Trust
and the Series' Prospectus.
11.8 Reliance on Certificates and Instructions. The Custodian shall be
entitled to rely upon any Written Instructions or Oral Instructions
actually received by the Custodian pursuant to the applicable Sections of
this Agreement and reasonably believed by the Custodian to be genuine and
to be given by an Authorized Person. The Trust agrees to forward to the
Custodian Written Instructions from an Authorized Person confirming such
Oral Instructions in such manner so that such Written Instructions are
received by the Custodian, whether by hand delivery, telex, or otherwise,
by the close of business on
223J 11/19/90 -15
the same day that such Oral Instructions are given to the Custodian. The
Trust agrees that the fact that such confirming instructions are not
received by the Custodian shall in no way affect the validity for the
transactions or enforceability of the transactions hereby authorized by
the Trust. The Trust agrees that the Custodian shall incur no liability to
the Trust in acting upon Oral Instructions given to the Custodian
hereunder concerning such transactions provided such instructions
reasonably appear to have been received from a duly Authorized Person.
11.9 Inspection of Books and Records. The books and records of the
Custodian regarding the Trust shall be open to inspection and audit at
reasonable times by officers and auditors employed by the Trust and by
employees of the Securities and Exchange Commission. The Custodian shall
provide the Trust, upon request, with any report obtained by the Custodian
on the system of internal accounting control of the Book-Entry System or
the Depository and with such reports on its own systems of internal
accounting control as the Trust may reasonably request from time to time.
Provided, however, that in the event that the Trust shall require a report
of internal accounting control produced by the auditors of the Series
rather than of the Custodian, then such report shall be prepared at the
expense of the Series, and the Series agrees to pay for the time expended
by Custodian on such audit and report at the hourly rate set forth on the
Fee agreement.
12. Term and Termination.
12.1 This Agreement shall become effective on the date first set forth
above (the "Effective Date") and shall continue in effect thereafter as
the parties may mutually agree.
12.2 Either of the parties hereto may terminate this Agreement with
respect to any Series by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than 60
days after the date of receipt of such notice. In the event such notice is
given by the Trust, it shall be accompanied by a certified resolution of
the Board of Trustees of the Trust, electing to terminate this Agreement
with respect to any Series and designating a successor Custodian or
Custodians, which shall be a person qualified to so act under the 1940
Act. In the event such notice is given by the Custodian, the Trust shall,
on or before the termination date, deliver to the Custodian a certified
resolution of the Board of Trustees of the Trust, designating a successor
Custodian or Custodians. In the absence of such designation by the Trust,
the Custodian may designate a successor Custodian, which shall be a person
qualified to so act under the 0000 Xxx. If the Trust fails to designate a
successor Custodian for any Series, the Trust shall upon the date
specified in the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities (other than
223J 11/19/90 -16
Securities held in the Book-Entry Systems which cannot be delivered to the
Trust) and moneys then owned by such Series, 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 Trust.
12.3 Upon the date set forth in such notice under paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in such
notice, 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 held by the Custodian and
specifically allocated to the Series or Series specified, after deducting
all fees, expenses and other amounts for the payment or reimbursement of
which it shall then be entitled with respect to such Series or Series.
13. Miscellaneous.
13.1 Annexed hereto as Appendix A is a certification signed by two of the
present Trustees of the Trust setting forth the names and the signatures
of the present Authorized Persons. The Trust agrees to furnish to the
Custodian a new certification in similar form in the event that any such
present Authorized Person ceases to be such an Authorized Person or in the
event that other or additional Authorize, Persons are elected or
appointed. Until such new certification shall be received, the Custodian
shall be fully protected in acting under the provisions of this Agreement
upon Oral Instructions or signature: of the present Authorized Persons as
set forth in the last delivered certification.
[begin strikethrough] 13.2 Annexed hereto as Appendix B is a certification
signed by two of the present Trustees of the Trust setting forth the names
and the signatures of the present Trustees of the Trust. The Trust agrees
to furnish to the Custodian a new certification in similar form in the
event any such present Trustee ceases to be a Trustee of the Trust or in
the event that the other or additional Trustees are elected or appointed.
Until such new certification shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement upon the
signature of the officers as set forth in the last delivered
certification. [end strikethrough]
13.3 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 or delivered to it at its offices
at:
The Bank of California, N.A.
Mutual Fund Services Dept., Trust Group
X.X. Xxx 00000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
223J 11/19/90 -17
or such other place as the Custodian may from time to time designate
in writing.
13.4 Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Trust, shall be sufficiently given if
addressed to the Trust and mailed or delivered to it at its offices at 000
Xxxxxxxx Xxxx., Xxxxxxxx, XX 00000-0000 or at such other place as the
Trust may from time to time designate in writing.
13.5 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 as may be permitted or required by the 0000 Xxx.
13.6 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 Trust without the
written consent of the Custodian, or by the Custodian without the written
consent of the Trust authorized or approved by a resolution of the Board
of Trustees of the Trust, and any attempted assignment without such
written consent shall be null and void.
13.7 This Agreement shall be construed in accordance with the laws of the
State of California.
13.8 It is expressly agreed to that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents, or employees of the Trust, personally, but bind only the
trust property of the Trust, as provided in the Declaration of Trust of
the Trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Trust and signed by an authorized
officer of the Trust, acting as such, and neither such authorization by
such Trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust
property of the Trust as provided in its Declaration of Trust.
13.9 The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
13.10 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.
223J 11/19/90 -18
APPENDIX B
[begin strikethrough] Certification of Trustees of Trust
Pasadena Investment Trust
By:_____________________________
Name:______________________
Title:_____________________
Date:______________________
By:______________________________
Name:_______________________
Title:______________________
Date:_______________________
The Bank of California
By:___________________________
Name:____________________
Title:___________________
Date:____________________ [end strikethrough]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the
day and year first above written.
Pasadena Investment Trust
Pasadena Investment Trust
By:/s/Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------
Title: President
------------------------
Date: 12-5-90
------------------------
By:/s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------
Title: Secretary
------------------------
Date: 12-5-90
------------------------
The Bank of California
By:/s/Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 11/19/90
----------------------------
SCHEDULE A
Funds
Name of Funds:
--------------
The Pasadena Growth Fund
The Pasadena US Government Securities Fund
The Pasadena Fundamental Value Fund
The Pasadena Nifty Fifty Fund
Pasadena Investment Trust
By:/s/Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------
Title: President
------------------------
Date: 12-5-90
------------------------
By:/s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------
Title: Secretary
------------------------
Date: 12-5-90
------------------------
The Bank of California
By:/s/Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 11/19/90
----------------------------
Schedule B
Fees
CUSTODY SERVICES
Pasadena Investment Trust
ITEMIZED FEES
Transaction Fee $17.00 Depository Eligible
$40.00 Depository Ineligible
Annual Holding Fee $25.00 Depository Eligible
$40.00 Depository Ineligible
Disbursements, Fedwires $10.00
Out-of-Pocket Expenses As incurred
ANNUAL ADMINISTRATION FEE $2,500
EXTRAORDINARY FEES For all services not specifically
provided for in this Agreement at
$30/hour.
Pasadena Investment Trust
By:/s/Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------
Title: President
------------------------
Date: 12-5-90
------------------------
By:/s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------
Title: Secretary
------------------------
Date: 12-5-90
------------------------
The Bank of California
By:/s/Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 11/19/90
----------------------------
Schedule B
Fees
CUSTODY SERVICES
Pasadena Investment Trust
ITEMIZED FEES
Transaction Fee $17.00 Depository Eligible
$40.00 Depository Ineligible
Annual Holding Fee $25.00 Depository Eligible
$40.00 Depository Ineligible
Disbursements, Fedwires $10.00
Out-of-Pocket Expenses As incurred
ANNUAL ADMINISTRATION FEE $2,500
EXTRAORDINARY FEES For all services not specifically
provided for in this Agreement at
$30/hour.
Pasadena Investment Trust
By:/s/Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------
Title: President
------------------------
Date: 12-5-90
------------------------
By:/s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------
Title: Secretary
------------------------
Date: 12-5-90
------------------------
The Bank of California
By:/s/Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 11/19/90
----------------------------
APPENDIX A
Certificate of Authorized Persons
Pasadena Investment Trust
By:/s/Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------
Title: President
------------------------
Date: 12-5-90
------------------------
By:/s/Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------
Title: Secretary
------------------------
Date: 12-5-90
------------------------
The Bank of California
By:/s/Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 11/19/90
----------------------------
APPENDIX B
[begin strikethrough] Certification of Trustees of Trust
Pasadena Investment Trust
By:_____________________________
Name:______________________
Title:_____________________
Date:______________________
By:______________________________
Name:_______________________
Title:______________________
Date:_______________________
The Bank of California
By:___________________________
Name:____________________
Title:___________________
Date:____________________ [end strikethrough]
Amendment Number 2 to Custody Contract Dated November 30, 1990
Between Pasadena Investment Trust and Union Bank of California, N.A.
Effective November 1, 1996
Schedule A
Funds:
The Pasadena Growth Fund
The Pasadena Balanced Return Fund
The Pasadena Nifty Fifty Fund
The Pasadena Small & Mid-Cap Growth Fund
The Pasadena Equity Income Fund
The Pasadena Investment Trust
By: s/
-----------------------------------
Title: Controller - Fund Accounting
-------------------------------
Date: 12/23/96
--------------------------------
The Union Bank of California, N.A.
By: s/
-----------------------------------
Title: VP & Manager
-------------------------------
Date: 11-8-96
--------------------------------
AMENDMENT NUMBER 3 TO CUSTODY AGREEMENT
DATED NOVEMBER 30,1990
BETWEEN PHOENIX-XXXXXXXX FUNDS
(FORMALLY PASADENA INVESTMENT TRUST) AND
UNION BANK OF CALIFORNIA N.A.
EFFECTIVE SEPTEMBER 12, 2001
This Amendment is supplemental to and shall be read as one with the Custody
Agreement dated November 30, 1990 between Phoenix-Xxxxxxxx Funds (formerly known
as Pasadena Investment Trust (the "Trust") and Union Bank of California, N.A.
(the "Custodian"), as amended by this Amendment Number 3 effective September 12,
2001. The Trust and Custodian hereby agree to the following:
The following provisions shall apply and supercede any contradictory provisions
in the Custodian Agreement dated November 30 1990 between Pasadena Investment
Trust and Union Bank of California N.A., as previously amended (hereafter
referred to as the "Agreement"). All capitalized terms used in the Agreement
shall have the same meanings in this Amendment, except as noted below.
1. DEFINITIONS. Certain terms used in this Amendment are defined as follows:
1.1 "Account" means, collectively, each account maintained by Custodian.
1.2 "Board" means the Board of Trustees of the Trust.
1.3 "Country Risk" means all factors reasonably related to the systemic
risk of holding Foreign Assets in a particular country including, but not
limited to, such country's political environment, economic and financial
infrastructure, prevailing or developing custody and settlement practices, and
laws and regulations applicable to the safekeeping and recovery of Foreign
Assets held in custody in that country.
1.4 "Eligible Foreign Custodian" ("Sub-Custodian", or collectively
"Sub-Custodians") has the meaning set forth in section (a)(1) of Rule 17f-5 of
the 1940 Act or that has otherwise been made exempt pursuant to an SEC exemptive
order.
1.5 "Eligible Securities Depository", ("Depository", or collectively
"Depositories") has the meaning set forth in section (b)(1) of Rule 17f-7 of the
1940 Act or that has otherwise been made exempt pursuant to an SEC exemptive
order.
1.6 "Emerging Market" means each market so identified on Appendix B
attached hereto.
1.7 "Foreign Custody Manager" has the meaning set forth in section
(a)(3) of Rule 17f-5 of the 1940 Act.
Page 1 of 6
1.8 "Foreign Market" means each market so identified on Appendix B
attached hereto.
1.9 "Rule 17f-5" means ss.270.17(f)-5 of the 1940 Act, as amended from
time to time.
1.10 "Rule 17f- 7" means ss.270.17 (f)- 7 of the 1940 Act, as amended
from time to time.
1.11 "Securities" means, in addition to the meaning as defined in
Paragraph 1. of the Agreement, domestic or foreign securities or both within the
meaning of ss.2(a)(36) of the 1940 Act and regulations -issued by the SEC under
ss.270.17(f) of the 1940 Act, as amended, which are held by Custodian in the
Account, and shall include cash of any currency or other property of the Trust
and all income and proceeds of sale of such securities or other property of the
Trust.
2. REPRESENTATION
2.1 The Trust represents that with respect to any Account established by
the Trust to hold Securities, the Trust is authorized to enter into the
Agreement and to retain Custodian on the terms and conditions and for the
purposes described therein.
2.2 Custodian represents that it (i) is organized under the laws of the
United States and has its principal place of business in the United States; (ii)
is a bank within the meaning of ss.202(a)(2) of the Investment Advisers Act of
1940 and ss.2(a)(5) of the 1940 Act, as amended; and (iii) has equity capital in
excess of $1 million.
3. SUPPLEMENTAL TERMS OF CUSTODY. Subject to the terms of this Amendment and
the Agreement, Custodian shall be responsible for the safekeeping and custody of
Securities. Custodian may (i) retain possession of all or any portion of
Securities, including possession in a foreign branch or other office of
Custodian; or (ii) retain, in accordance with Paragraph 4 of this Amendment, one
or more Sub-Custodians to hold all or any portion of the Securities. Custodian
and any Sub-Custodian may, in accordance with Paragraph 5 of this Amendment,
deposit definitive or book-entry Securities with one or more Depositories.
3.1 If Custodian retains possession of Securities, Custodian shall ensure
the Securities are at all times properly identified as being held for the
appropriate Account. Custodian shall segregate physically the Securities from
other securities or property held by Custodian. Custodian shall not be required
to segregate physically the Securities from other securities or property held by
Custodian for third parties as Custodian, but Custodian shall maintain adequate
records showing the true ownership of the Securities.
3.2 If Custodian deposits Securities with a Sub-Custodian, Custodian shall
maintain adequate records showing the identity and location of the
Sub-Custodian, the Securities held by the Sub-Custodian, and each Account to
which such Securities belong.
3.3 If Custodian or any Sub-Custodian deposits Securities with a
Depository, Custodian shall maintain, or shall cause the Sub-Custodian to
maintain, adequate records showing the identity and location of the Depository,
the Securities held by the Depository, and each Account to which such Securities
belong.
Page 2 of 6
3.4 If the Trust directs Custodian to deliver certificates or other
physical evidence of ownership of Securities to any broker or other party, other
than a Sub-Custodian or Depository employed by Custodian for purposes of
maintaining the Account, Custodian's sole responsibility shall be to exercise
care and diligence in effecting the delivery as instructed by the Trust. Upon
completion of the delivery, Custodian shall be discharged completely of any
further liability or responsibility with respect to the safekeeping and custody
of Securities so delivered.
3.5 Custodian shall ensure that (i) the Securities will not be subject to
any right, charge, security interest, lien, or claim of any kind in favor of
Custodian or any Sub-Custodian except for Custodian's expenses relating to the
Securities' safe custody or administration, and (ii) the beneficial ownership of
the Securities will be freely transferable without the payment of money or value
other than for safe custody or administration.
3.6 The Trust or its designee, shall have reasonable access upon
reasonable notice during regular business hours to the books and records, or
shall be given confirmation of the contents of the books and records, maintained
by Custodian or any Sub-Custodian holding Securities hereunder to verify the
accuracy of such books and records. Custodian shall notify the Trust promptly of
any applicable law or regulation in any country where Securities are held that
would restrict such access or confirmation.
4. SUB-CUSTODIANS; CUSTODIAN AS FOREIGN CUSTODY MANAGER. The Trust, by
resolution adopted by its Board, hereby delegates to the Custodian, subject to
section (b) of Rule 17f-5, the responsibilities set forth below with respect to
Securities of the Fund held outside the United States ("Foreign Assets"), and
the Custodian hereby accepts such delegation as the Foreign Custody Manager with
respect to the Trust.
4.1 Scope of Delegated Responsibilities:
4.1.1 Selection of Eligible Foreign Custodians. Subject to the
provisions of this Paragraph 4, the Foreign Custody Manager may place and
maintain Foreign Assets in the care of the Eligible Foreign Custodian selected
by the Foreign Custody Manager in each country listed on Appendix B to this
Amendment and the Agreement, as amended from time to time. In performing its
delegated responsibilities as Foreign Custody Manager to place and maintain
Foreign Assets with an Eligible Foreign Custodian, the Foreign Custody Manager
shall determine that the Foreign Assets will be subject to reasonable care,
based on the standards applicable to custodians in the market in which the
Foreign Assets will be held by that Eligible Foreign Custodian, after
considering factors relevant to the safekeeping of such assets, including,
without limitation the factors specified in section (c)(1) of Rule 17f-5.
4.1.2 Contracts with Eligible Foreign Custodians. The Foreign Custody
Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of section (c)(2) of Rule 17f-5.
4.1.3 Monitoring. In each case where the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a system to
monitor the appropriateness of maintaining the Foreign Assets with such Eligible
Foreign Custodian and the contract governing the custody arrangements
established by the Foreign Custody Manager with the Eligible
Page 3 of 6
Foreign Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with subparagraph 4.3 below.
4.2 Guidelines for the Exercise of Delegated Authority. For purposes
of this Paragraph 4, the Trust shall be deemed to have considered the Country
Risk as is incurred by placing and maintaining Foreign Assets in each country
for which the Custodian is serving as Foreign Custody Manager of the Trust. To
aid the Trust in monitoring Country Risk, Custodian shall provide the Trust the
following information relating to Country Risk: (a) at least annually, opinions
of local counsel concerning whether applicable foreign law would restrict the
access afforded to the Trust's independent public accountants to books and
records kept by an eligible foreign custodian located in that country; whether
applicable foreign law would restrict the Customer's ability to recover its
Foreign Assets and cash in the event of the bankruptcy of an Eligible Foreign
Custodian located in that country; whether applicable foreign law would restrict
the Customer's ability to recover Foreign Assets that are lost while under the
control of an Eligible Foreign Custodian located in the country; and (b)
periodic market reports with respect to securities settlement and registration,
taxation, and depositories, if any. Custodian may also periodically provide the
Trust market reports with respect to each foreign country's securities
regulatory environment, foreign ownership restrictions, or foreign exchange
practices. The Trust hereby acknowledges that (i) such information is solely
designed to inform the Trust of market conditions and procedures and is not
intended to be considered comprehensive or as a recommendation to invest or not
invest in particular markets, and (ii) Custodian is not the primary source of
the information and has gathered the information from sources it considers
reliable, but that Custodian shall have no responsibility for inaccuracies or
incomplete information.
4.3 Reporting Requirements. The Foreign Custody Manager shall report
the withdrawal of Foreign Assets from an Eligible Foreign Custodian and the
placement of such Foreign Assets with another Eligible Foreign Custodian by
providing to the Board an amended Appendix B at the end of the calendar quarter
in which an amendment to such Appendix has occurred. The Foreign Custody Manager
shall make written reports promptly notifying the Board of any other material
change in the foreign custody arrangements of the Trust or at such other times
as the Board deems reasonable and appropriate.
4.4 Standard of Care as Foreign Custody Manager. In performing its
delegated responsibilities, the Foreign Custody Manager agrees to exercise
reasonable care, prudence and diligence such as a person having responsibility
for the safekeeping of assets of management investment companies registered
under the 1940 Act would exercise.
4.5 Representations with respect to Rule 17f-5. The Foreign Custody
Manager represents to the Trust that it is a U.S. Bank as defined in section
(a)(7) of Rule 17f-5. The Trust represents to the Custodian that the Board has
determined, based on information provided to it by the Custodian, that it is
reasonable for the Board to rely on the Custodian to perform the
responsibilities delegated pursuant to this Amendment to the Custodian as
Foreign Custody Manager of the Trust.
5. DEPOSITORIES: COMPLIANCE WITH RULE 17F-7. Custodian shall provide an analysis
of the custody risks associated with maintaining the Trust's Foreign Assets with
each Eligible Securities Depository used by Custodian prior to the initial
placement of the Trust's Foreign Assets at such
Page 4 of 6
Depository and at which any Foreign Assets of the Trust are held or are expected
to be held. Custodian shall monitor the custody risks associated with
maintaining the Trust's Foreign Assets at each such Eligible Securities
Depository on a continuing basis and shall promptly notify customer or its
adviser of any material changes in such risks. Custodian shall exercise
reasonable care, prudence and diligence in performing the requirements set forth
in this Paragraph. Based on the information available to it in the exercise of
diligence, Custodian shall determine the eligibility under Rule 17f-7 of each
Depository before including it on Appendix B hereto and shall promptly advise
the Trust if any Eligible Securities Depository ceases to be eligible. For
purposes of this Paragraph 5, the Trust shall be deemed to have considered the
Country Risk as is incurred by placing and maintaining Foreign Assets in each
country in which each such Eligible Securities Depository operates.
6. MARKET TRANSACTIONS: SETTLEMENT DATES. Custodian has identified certain
Foreign Markets and certain Emerging Markets in Appendix B of this Amendment,
which Custodian may amend in writing to the Trust from time to time.
6.1 The Trust agrees that all settlements of Securities transactions
shall be "transacted in accordance with the local laws, customs, market
practices and procedures to which Sub-Custodians and Depositories are subject in
each Foreign and Emerging Market.
6.2 The Trust understands and agrees that settlement of Securities
transactions is available only on an actual settlement date basis in certain
Emerging Markets, which are identified in Appendix B, and as may be amended by
Custodian in writing to the Trust from time to time.
6.2.1 For Emerging Markets with actual settlement dates, cash of any
currency deposited or delivered to the Account shall be available for use by the
Trust only on the actual business day on which funds of good value are available
to Sub-Custodian in the Account.
6.2.2 For Emerging Markets with actual settlement dates, Securities
deposited or delivered to the Account shall be available for use by the Trust
only on the actual business day on which such Securities are held in the nominee
name or are otherwise subject to the control of, and in a form for good delivery
by, the Sub-Custodian.
7. TAXES. Custodian shall pay or cause to be paid from the Account all taxes and
levies in the nature of taxes imposed on the Account or the Securities thereof
by any country. Custodian will use its best efforts to give the Trust advance
written notice of the imposition of such taxes. However, Custodian shall use
reasonable efforts to obtain refunds of taxes withheld on Securities or the
income thereof that are available under applicable tax laws, treaties, and
regulations.
8. CUSTODIAN'S RESPONSIBILITIES AND LIABILITIES:
8.1 Custodian's duties and responsibilities shall be limited to those
expressly set forth in this Amendment and the Agreement, or as otherwise agreed
by Custodian in writing. In carrying out its responsibilities, Custodian shall
exercise no less than the same degree of care and diligence it usually exercises
with respect to similar property of its own.
Page 5 of 6
8.2 Custodian (i) shall not be required to maintain any special
insurance for the benefit of the Trust, and (ii) shall not be liable or
responsible for any loss, damage, expense, failure to perform or delay caused by
accidents, strikes, fire, flood, war, riot, electrical or mechanical or
communication line or facility failures, acts of third parties (including
without limitation any messenger, telephone or delivery service), acts of God,
war, government action, civil commotion, fire, earthquake, or other casualty or
disaster or any other cause or causes which are beyond Custodian's reasonable
control. However, Custodian shall use reasonable efforts to replace Securities
lost or damaged due to such causes with securities of the same class and issue
with all rights and privileges pertaining thereto. Custodian shall be liable to
the Trust for any loss which shall occur as the result of the failure of a
Sub-Custodian to exercise reasonable care with respect to the safekeeping of
assets to the same extent that Custodian would be liable to the Trust if
Custodian were holding such securities and cash in its own premises. In all
cases, Custodian's liability for any act or failure to act under this Amendment
and the Agreement shall be limited to the resulting direct loss, if any, of the
Trust. Under no circumstances shall Custodian be liable for any consequential,
indirect, punitive, or special damage which the Trust may incur or suffer in
connection with this Amendment and the Agreement.
8.3 Custodian shall not be required to appear in or defend any legal
proceedings with respect to the Account or the Securities unless Custodian has
been indemnified to its reasonable satisfaction against loss and expense
(including reasonable attorneys' fees).
9. Effective Date. This Amendment shall be effective as of the date appearing
below, and shall supersede any contradictory provisions in the Agreement.
The Custodian and the Trust hereby acknowledge that the Amendment shall form
part of the Agreement and shall be binding on the Custodian and the Trust.
Date: September 12, 2001
TRUST:
/s/Xxxxx Xxxxxxxx
------------------------------------------------
Authorized Signature
Xxxxx Xxxxxxxx, President
UNION BANK OF CALIFORNIA, N.A.:
/s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Authorized Signature
Xxxx X. Xxxxxxx, Senior Vice President
Page 6 of 6
APPENDIX B: LIST OF COUNTRIES, ELIGIBLE FOREIGN CUSTODIANS AND ELIGIBLE SECURITIES DEPOSITORIES
AS OF SEPTEMBER 12, 2001
------------------------------------------------------------------------------------------------------------------------------------
FOREIGN/
COUNTRY/ COMPULSORY EMERGING SETTLEMENT
MARKET SUB-CUSTODIAN DEPOSITORY DEPOSITORY MARKET STANDARD
------------------------------------------------------------------------------------------------------------------------------------
Argentina Citibank Caja de Valores No Emerging Contractual
------------------------------------------------------------------------------------------------------------------------------------
Australia National Australia Bank Government Debt: The Reserve Bank Yes Foreign Contractual
Information and Transfer System
Corporate and Government Bond:
Austraclear
Equities: Clearing House Electronic Sub-
register System
------------------------------------------------------------------------------------------------------------------------------------
Austria Bank Austria Wertpapiersammelbank bei der Yes Foreign Contractual
Oesterreichischi Kontrollbank AG
------------------------------------------------------------------------------------------------------------------------------------
Bangladesh Standard Chartered Bank None No Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
Belgium KBC Bank Government Instruments: Banque Nationale Yes Foreign Contractual
de Belgique
Equities and Corporate Debt: Caisse
Interprofessionelle de Depots et de
Virements de Titres
------------------------------------------------------------------------------------------------------------------------------------
Brazil Citibank Equities: Camara de Liquidacao e Custodia Yes Emerging Actual
Government Bonds: Sistema Especial de
Liquidacao e Custodia
Other Fixed Income: Camara de Liquidacao
e Custodia
------------------------------------------------------------------------------------------------------------------------------------
Canada Royal Bank of Canada The Canadian Depository for Securities Yes Foreign Contractual
Limited
------------------------------------------------------------------------------------------------------------------------------------
Chile Citibank Deposito Central de Valores No Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
China Standard Chartered Bank The China Securities Depository and Yes Emerging Actual
Clearing Corporation Limited (CSDCC)
------------------------------------------------------------------------------------------------------------------------------------
Colombia Citibank Government Bonds: Deposito Central de No Emerging Actual
Valores
Equities and Other Fixed Income: Deposito
Centralizado de Valores
------------------------------------------------------------------------------------------------------------------------------------
Czech Ceskoslovenska Obchodni Government Bonds: Registracni Centrum Yes Emerging Actual
Republic Banka Ceske Narodni Banky
Equities and Other Fixed Income: Stredisko
Cennych Papiru
------------------------------------------------------------------------------------------------------------------------------------
Denmark Danske Bank The Danish Securities Centre Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA GLOBAL CUSTODY PAGE 1 OF 4
APPENDIX B: LIST OF COUNTRIES, ELIGIBLE FOREIGN CUSTODIANS AND ELIGIBLE SECURITIES DEPOSITORIES
AS OF SEPTEMBER 12, 2001
------------------------------------------------------------------------------------------------------------------------------------
FOREIGN/
COUNTRY/ COMPULSORY EMERGING SETTLEMENT
MARKET SUB-CUSTODIAN DEPOSITORY DEPOSITORY MARKET STANDARD
------------------------------------------------------------------------------------------------------------------------------------
Egypt Citibank Misr for Clearing, Settlement and Yes Emerging Actual
Depository
------------------------------------------------------------------------------------------------------------------------------------
Finland Xxxxxx Bank Finnish Central Depository Limited Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
France Credit Agricole Indosuez Euroclear France Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Germany Dresdner Bank Clearstream Banking Frankfurt Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Greece Citibank Equities:.Central Securities Depository Yes Emerging Contractual
Government Instruments: Bank of Greece
------------------------------------------------------------------------------------------------------------------------------------
Hog Kong Standard Chartered Bank Government Instruments: Hong Kong Yes Foreign Contractual
Monetary Authority
Equities and Corporate Debt: Hong Kong
Securities Clearing Company Limited
------------------------------------------------------------------------------------------------------------------------------------
Hungary Bank Austria Central Depository and Clearing House Ltd. Yes Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
India Citibank Government Bonds: The Public Debt Office Yes Emerging Actual
Equities and Corporate Bonds: National
Securities Depository Ltd.
Equities and Corporate Bonds: Bombay
Stock Exchange Clearing House
Equities and Corporate Bonds: National
Stock Exchange Clearing House
------------------------------------------------------------------------------------------------------------------------------------
Indonesia Standard Chartered Bank PT. Kustodian Sentral Efek Indonesia Yes Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
Ireland Allied Irish Bank CREST Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Israel Bank Leumi None No Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
Italy IntesaBCI Monte Titoli Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Japan Bank of Tokyo Mitsubishi Government Instruments: Bank of Japan No Foreign Contractual
Equities and Corporate Bonds: Japan
Securities Depository Center
------------------------------------------------------------------------------------------------------------------------------------
Jordan Citibank None No Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
Korea Standard Chartered Bank Korean Securities Depository Yes Emerging Actual
(Republic of)
------------------------------------------------------------------------------------------------------------------------------------
Malaysia Standard Chartered Bank Government Bonds: Bank Nagara Malaysia Yes Emerging Actual
Equities and Other Fixed Income:
Malaysian Central Depository
------------------------------------------------------------------------------------------------------------------------------------
Mexico Banco National de Mexico Instituto Para el Deposito de Valores Yes Emerging Contractual
SA (a subsidiary of (INDEVAL SA)
Citicorp)
------------------------------------------------------------------------------------------------------------------------------------
Morocco Citibank MAROC XXXX No Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA GLOBAL CUSTODY PAGE 2 OF 4
APPENDIX B: LIST OF COUNTRIES, ELIGIBLE FOREIGN CUSTODIANS AND ELIGIBLE SECURITIES DEPOSITORIES AS OF SEPTEMBER
12, 2001
------------------------------------------------------------------------------------------------------------------------------------
FOREIGN/
COUNTRY/ COMPULSORY EMERGING SETTLEMENT
MARKET SUB-CUSTODIAN DEPOSITORY DEPOSITORY MARKET STANDARD
------------------------------------------------------------------------------------------------------------------------------------
Netherlands Fortis Bank Nederlands Centraallnstituut voor Giraal Yes Foreign Contractual
Effectenverkeer B.V.
------------------------------------------------------------------------------------------------------------------------------------
New Zealand National Nominees Reserve Bank of New Zealand Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Norway Christiania Bank Verdipapirsentralen Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Pakistan Standard Chartered Bank Government Instruments: State Bank of No Emerging Actual
Pakistan
Equities and Other Fixed Income: Central
Depository Company of Pakistan Ltd.
------------------------------------------------------------------------------------------------------------------------------------
Peru Citibank CAVALI Yes Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
Philippines Standard Chartered Bank Equities: Philippine Central Depository Yes Emerging Actual
Government Bonds: Bangko Sentral ng
Philippines
Other Government Instruments: Bureau of
Treasury
------------------------------------------------------------------------------------------------------------------------------------
Poland Bank Handlowy w Warszawie Government Bonds: National Bank of Yes Emerging Actual
(a subsidiary of Citibank) Poland
Equities and Other Fixed Income: National
Depository of Securities
------------------------------------------------------------------------------------------------------------------------------------
Portugal Banco Comercial Portugues Central de Valores Mobiliarios No Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Russia Citibank Government Bonds: Rosvneshtorgbank No Emerging Actual
Equities, GKO's and OFZ's: National
Depository Center
------------------------------------------------------------------------------------------------------------------------------------
Singapore Development Bank of Central Depository (PTE) Limited Yes Foreign Contractual
Singapore
------------------------------------------------------------------------------------------------------------------------------------
Slovenia Bank Austria Central Securities Clearing Corporation Yes Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
South Africa Standard Bank of Government and Corporate Debt: The No Foreign Contractual
South Africa Central Depository Limited
Equities: Shares Transactions Totally
Electronic
------------------------------------------------------------------------------------------------------------------------------------
Spain BNP Paribas Government Bonds: Bank of Spain Yes Foreign Contractual
Equities and Corporate Debt: Servico de
Compensacion y Liquidacion de Valores
------------------------------------------------------------------------------------------------------------------------------------
Sri Lanka Standard Chartered Bank Central Depository System No Emerging Actual
------------------------------------------------------------------------------------------------------------------------------------
Sweden SEBanken Vardepapperscentralen Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
Switzerland UBS AG Segalntersettle AG No Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA GLOBAL CUSTODY PAGE 3 OF 4
APPENDIX B: LIST OF COUNTRIES, ELIGIBLE FOREIGN CUSTODIANS AND ELIGIBLE SECURITIES DEPOSITORIES
AS OF SEPTEMBER 12, 2001
------------------------------------------------------------------------------------------------------------------------------------
FOREIGN/
COUNTRY/ COMPULSORY EMERGING SETTLEMENT
MARKET SUB-CUSTODIAN DEPOSITORY DEPOSITORY MARKET STANDARD
------------------------------------------------------------------------------------------------------------------------------------
Taiwan Standard Chartered Bank Taiwan Securities Central Depository Yes Emerging Contractual
Company Ltd.
------------------------------------------------------------------------------------------------------------------------------------
Thailand Standard Chartered Bank Thailand Securities Depository Company No Emerging Actual
Ltd.
------------------------------------------------------------------------------------------------------------------------------------
Turkey Citibank Government Bonds: Central Bank of Turkey Yes Emerging Actual
Equities and Other Fixed Income: Istanbul
Settlements and Custody Bank
------------------------------------------------------------------------------------------------------------------------------------
United
Kingdom HSBC Bank CREST Yes Foreign Contractual
------------------------------------------------------------------------------------------------------------------------------------
United Union Bank of Equities and Fixed Income: The Depository Yes Foreign Contractual
States California NA Trust Company (DTC)
Equities: Citibank NA
Equities and Fixed Income: National
Securities Clearing Corporation
Government Bonds: Federal Reserve Bank
------------------------------------------------------------------------------------------------------------------------------------
Venezuela Citibank Equities, Corporate and Government Debt: No Emerging Actual
Caja Venezolana de Valores SA
------------------------------------------------------------------------------------------------------------------------------------
UNION BANK OF CALIFORNIA GLOBAL CUSTODY PAGE 4 OF 4
