EXHIBIT 8(b)(1)
SUBCUSTODIAN AGREEMENT
AGREEMENT dated as of December 31, 1978, between State Street Bank and
Trust Company organized under the laws of the Commonwealth of Massachusetts (the
"Custodian"), and The Bank of New York, London office (the "Subcustodian").
WITNESSETH:
WHEREAS, the Custodian, under its former name, State Street Trust Company,
has entered into a custodian agreement with Third Investment Counsel Corporation
("Fund") dated September 30, 1949; as subsequently amended by an amendment dated
November 29, 1978;
WHEREAS, Third Investment Counsel Corporation most recently changed its
name to Xxxxxxx, Xxxxxxx & Xxxxx Common Stock Fund, Inc. on March 21, 1950;
WHEREAS, the Custodian desires to utilize Subcustodian for the purpose of
holding cash and securities outside the United States;
WHEREAS, the Subcustodian is a bank within the meaning of Section 2(a)(5)
of the Investment Company Act of 1940 having an aggregate capital, surplus and
undivided profits of not less than Two Million Dollars ($2,000,000);
NOW, THEREFORE, the Custodian and Subcustodian hereby agree as follows:
I. The Custodian may from time to time deposit securities or cash with the
Subcustodian. The Subcustodian shall not be responsible for any property of the
Fund not delivered to the Subcustodian.
II. The Subcustodian shall hold and dispose of the securities hereafter held by
or deposited with the Subcustodian as follows:
A. The Subcustodian shall hold in a separate account, and physically
segregated at all times from those of any other persons, firms or corporations,
pursuant to the provisions hereof, all securities received by it for the account
of the Custodian as custodian for the Fund. If any securities are registered in
nominee name, such nominee name shall be used solely for the Fund. All such
securities are to be held or disposed of by the Subcustodian for, and subject at
all times to, the instructions of the Custodian pursuant to the terms of this
Agreement.
B. Upon receipt of instructions from the Custodian, the Subcustodian shall
release or deliver securities owned by the Fund only for the following purposes:
(1) upon sale of securities for the account of the Fund against
receipt of payment therefor by cash, certified or cashier's check, or bank
credit;
(2) to the issuer thereof or its agent when securities are called,
redeemed, retired or otherwise become payable, provided that the cash is to
be delivered to the Subcustodian;
(3) for exchange for a different number of bonds or certificates
representing the same aggregate face amount or number of units, for
exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the securities of the
issuer of such securities, or pursuant to provisions for conversion
contained in such securities, or pursuant to any deposit agreement;
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provided that, in any such case, the new securities and cash, if any, are
to be delivered to the Subcustodian;
(4) in the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or similar
securities; provided that the surrender of interim receipts or temporary
securities for definitive securities may be made at any time; provided
that, in any such case, the new securities are to be delivered to the
Subcustodian;
(5) in the case of tender offers or similar offers to purchase
received in writing, the delivery of securities to the designated
depository or other receipt agent. The Subcustodian shall have full
responsibility for transmitting to the Custodian any such offers received
by it. Thereafter, the Custodian, if it desires to respond to such offer,
shall have full responsibility for providing the subcustodian with all
necessary instructions in timely enough fashion for the subcustodian to act
thereon prior to any expiration time for such offer;
(6) upon receipt from the Custodian of instructions directing
disposition of securities in a manner other than or for purposes other than
the manners and purposes enumerated in the foregoing five items; provided,
however, that disposition pursuant to this item (6) shall be made by the
Subcustodian only upon receipt of instructions from the Custodian
specifying the amount of such securities to be delivered, the purpose for
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which the delivery is to be made, and the name of the person or persons to
whom such delivery is to be made.
III. The Subcustodian shall hold and dispose of cash hereafter held by or
deposited with the Subcustodian as follows:
A. The subcustodian shall open and maintain a separate account or accounts
in the name of the Custodian as custodian for the Fund, subject only to draft or
order by the Subcustodian acting pursuant to the terms of this Agreement. The
Subcustodian shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it for the account of the Custodian as custodian
for the Fund.
B. Upon receipt of instructions from the Custodian, the Subcustodian shall
make payments of cash for the account of the Fund from such cash only for the
following purposes:
(1) upon the purchase of securities for the account of the Fund but
only against the delivery of such securities to the Subcustodian;
(2) in connection with the subscription, conversion, exchange, tender
or surrender of securities owned by the Fund as set forth in Paragraph IIB
hereof; and
(3) for deposit with the Custodian or with such other banking
institutions as may from time to time be approved by the Fund.
IV. All instructions shall be in writing executed by the Custodian, and the
Subcustodian shall not be required to act on instructions otherwise
communicated; provided, however, that the subcustodian may in its discretion act
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on the basis of instructions received via telecommunications facilities if the
Subcustodian reasonably believes such instructions to have been dispatched by
the Custodian. The Subcustodian may require that instructions received via
telecommunications facilities be authenticated. The Subcustodian shall be
protected in acting upon any instructions, notice, request, consent, certificate
or other instrument or paper reasonably believed by it to be genuine and to have
been properly executed. The Subcustodian may receive and accept a certificate
signed by the secretary of the Custodian as conclusive evidence of the authority
of any person to act on behalf of the Custodian, and such certificate may be
considered as in full force and effect until receipt by the Subcustodian of
written notice to the contrary.
V. Unless and until the Subcustodian receives instructions from the Custodian to
the contrary, the Subcustodian shall:
A. Present for payment all coupons and other income items held by it for
the account of the Custodian as custodian for the Fund which call for payment
upon presentation and hold the cash received by it upon such payment for the
account of the Custodian as custodian for the Fund;
B. Collect interest and cash dividends received, with notice to the
Custodian, for the account of the Custodian as custodian for the Fund;
C. Hold for the account of the Custodian as custodian for the Fund
hereunder all stock dividends, rights and similar securities issued with respect
to any securities held by it hereunder.
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VI. The Subcustodian shall execute on behalf of the Custodian, in the Fund's
name, any declarations, affidavits, or certificates of ownership which may be
necessary or useful from time to time for the Subcustodian to perform any or
several of its obligations arising under the provisions of this Agreement.
VII. If the Subcustodian shall receive any notices or reports in respect of
securities held by it hereunder, it shall promptly upon receipt thereof transmit
to the Custodian by airmail, telecommunications facilities, or comparable means
any such notices or reports.
VIII. The Subcustodian may, from time to time, appoint (and may at any time
remove) any bank or trust company as its agent for purposes of acquiring or
disposing of securities or carrying out such provisions of this Agreement as the
Subcustodian may, from time to time, direct; provided that the Subcustodian
shall be fully liable to the Custodian for the acts or omissions of such agents
to the same extent as if the acts or omissions of the agents were the acts or
omissions of the Subcustodian.
IX. On each day on which there is a cash or securities transaction over the
account of the Custodian as custodian for the Fund, the Subcustodian shall
dispatch to the Custodian (and to the Fund if requested) separate cash and
securities advices. The Subcustodian shall furnish to the Custodian at the end
of every month a statement of the cash and securities held by the Subcustodian
and any agent for the Custodian as custodian for the Fund. Such statements shall
be sent by air mail, telecommunications facilities or comparable means to the
Custodian within 15 days after the end of each month. The Subcustodian shall
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furnish the Custodian with such additional statements as the Custodian may
reasonably request.
X. As compensation for the services rendered pursuant to this Agreement, the
Custodian shall pay the Subcustodian a fee computed in accordance with the
schedule attached hereto as Exhibit A, as such schedule may be amended from time
to time by written agreement between the Custodian and the Subcustodian. The
Custodian shall reimburse the Subcustodian for any reasonable out-of-pocket
expenses incurred by the Subcustodian in connection with its obligations
hereunder.
XI. Upon request, the Custodian shall deliver, or shall request the Fund to
deliver, to the Subcustodian, such proxies, powers-of-attorney or other
instruments as may be necessary or desirable in connection with the performance
by the Subcustodian of its obligations under this Agreement.
XII. So long as and to the extent that it is in the exercise of reasonable care,
the Subcustodian 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. The Subcustodian shall not be liable for any action
taken or omitted in good faith upon any notice, request, certificate or other
instrument reasonably believed by it to be genuine and to be signed by the
proper party or parties. The Subcustodian shall be obligated to exercise
reasonable care and diligence in carrying out the provisions of this Agreement
and shall be without liability for any action taken or thing done by it in good
faith and without negligence, the standard for which shall be that applicable to
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a bailee for hire under Massachusetts law. Notwithstanding the foregoing, the
Subcustodian shall not be liable for (a) any violation by the Fund of any
limitation applicable to its powers to make expenditures, to invest in or pledge
securities or to borrow which does not involve action by the Subcustodian, and
(b) any violation by the Fund of any limitation applicable to its powers to make
investments, to invest in or pledge securities or to borrow which involves
action by the Subcustodian, provided that such action was authorized in
accordance with Paragraphs II, III or IV hereof. The Subcustodian shall be
entitled to and may act upon advice of counsel (who may be counsel for the Fund)
on all matters, and shall be without liability for any action reasonably taken
or omitted pursuant to such advice.
XIII. This Agreement may be terminated at any time by the Custodian or the
Subcustodian by giving written notice to the other party at least thirty (30)
days prior to the date on which such termination is to become effective. In the
event of termination, the Subcustodian will deliver any securities held by it or
any agent to the Custodian or to such successor subcustodian as the Custodian
shall instruct in a manner to be mutually agreed upon by the parties hereto or,
in the absence of such agreement, in a reasonable manner. Further in the event
of termination, the Subcustodian shall be entitled to receive prior to the
delivery of the securities held by it or any agent all accrued fees and
unreimbursed expenses the payment of which is contemplated by Paragraph X hereof
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upon receipt by the Custodian of a final statement setting forth such fees and
expenses.
XIV. Except as the parties shall from time to time otherwise agree, all
instructions, notices, reports and other communications contemplated by this
Agreement shall be dispatched as follows:
If to the Custodian: State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Telex No.:
If to the Subcustodian: The Bank of New York
Attention:
Telex No.:
XV. This Agreement constitutes the entire understanding and agreement of the
parties hereto, and neither this Agreement nor any provisions hereof may be
changed, waived, discharged or terminated except by a statement in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
XVI. This Agreement shall be binding upon and shall inure to the benefit of the
Custodian and the Subcustodian and their successors and assignees provided that
neither the Custodian nor the Subcustodian may assign this Agreement or any of
the rights or obligations hereunder without the prior written consent of the
other party.
XVII. This Agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Massachusetts. The parties hereto agree that
notwithstanding any provision or provisions of this Agreement of apparent
contrary effect, the Subcustodian shall have no obligation to take any action
which is contrary to any one or several provisions of the laws, orders or
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regulations of England. The Subcustodian shall not be liable for any expense or
damage to the Custodian or the Fund that may result from violation of any or
several of the foregoing laws, orders and regulations, except as such expense or
damage is caused by the wilful misconduct or negligence of the Subcustodian.
XVIII. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. This Agreement shall become effective when one or more counterparts
have been signed and delivered by each of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
STATE STREET SANK AND TRUST COMPANY
(the "Custodian")
By /s/ [Illegible]
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VICE PRESIDENT
THE BANK OF NEW YORK
(the "Subcustodian")
By /s/ [Illegible]
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