EXHIBIT (2)(j)(4)
THE THIRD SUPPLEMENTARY AGREEMENT
TO THE THAI CUSTODY CONTRACT
OF
THE THAI FUND
THIRD SUPPLEMENTARY AGREEMENT, dated as of June 14, 2001 (this
"Supplement"), by and among The Thai Farmers Bank, as custodian (the
"Custodian"), MFC Asset Management Public Company Limited, as investment manager
(the "Manager"), and The Thai Fund, Inc. (the "Fund") to the THAI CUSTODY
CONTRACT (as amended, modified or supplemented from time to time, the
"Agreement"), dated as of February 17, 1988, by and among the Custodian, the
Manager and the Fund.
PRELIMINARY STATEMENTS
A. Pursuant to the Agreement, as amended by the Supplementary Agreement to
Thai Custody Contract, dated as of May 30, 1990, and by the Second Supplementary
Agreement to Thai Custody Contract, dated as of February 20, 1998, the Custodian
agreed to act as the custodian for the Thai securities and cash of the Fund (the
"Plan Assets").
B. Pursuant to Rule 17f-7 (the "Rule") under the Investment Company Act of
1940, as amended (the "1940 Act"), the Custodian is required to provide certain
information, and perform certain monitoring functions, in connection with any
Eligible Securities Depository (as defined in the Rule) used by the Fund to
maintain the Plan Assets.
NOW, THEREFORE, in consideration of the premises and the agreements herein
contained, the parties hereto agree as follows:
1. Definitions. Unless the context clearly requires otherwise, all
capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Agreement.
2. Responsibilities under the Rule.
(a) In addition to the duties of the Custodian under the Agreement,
the Custodian shall, for consideration by the Fund and as contemplated by the
Rule, provide an analysis of the custody risks associated with maintaining the
Fund's Plan Assets with each Eligible Securities Depository used by the
Custodian as of the date hereof (or, in the case of an Eligible Securities
Depository not used by the Custodian as of the date hereof, prior to the initial
placement of the Fund's Plan Assets at such Depositary) and at which any of the
Fund's Plan Assets maintained by the Custodian are held or are expected to be
held. For so long as required by the Rule, and as required by the Rule, the
Custodian shall monitor the custody risks associated with maintaining the Fund's
Plan Assets at each such Eligible Securities Depository on a continuing basis
and shall promptly notify the Fund or Xxxxxx Xxxxxxx Investment Management Inc.
(the "Investment Adviser"), of any material change in such risks.
(b) The Custodian shall exercise reasonable care, prudence and
diligence in performing its duties pursuant to Section 2(a) as defined by New
York law.
(c) Based on the information obtained by it in the exercise of
diligence and subject to the standard of care in Section 2(b) hereof, the
Custodian shall promptly advise the Fund or the Investment Adviser if any
Eligible Securities Depository used by the Custodian and at which any of the
Plan Assets maintained by the Custodian are held ceases to satisfy any of the
requirements for being an Eligible Securities Depository set out in subparagraph
(b)(1) of the Rule.
(d) The Custodian shall commence performing the duties set forth in
this Section 2 as soon as reasonably practicable following the date hereof, but
in no event later than July 1, 2001.
3. Liability of the Custodian.
(a) The Custodian shall not be liable for any losses to the Fund or
the Plan Assets to the extent such losses shall arise from the gross negligence
or willful misconduct of (i) any securities depository, including, without
limitation, any Eligible Securities Depository, or (ii) the Fund or the
Investment Adviser in deciding to hold or continue to hold any Plan Assets at
such depository.
(b) The foregoing shall be in addition to any other indemnities,
limitations and other protections provided to the Custodian under the Agreement.
4. General.
(a) Except as expressly amended by this Supplement, the Agreement is
valid and enforceable and remains in full force and effect.
(b) The Fund shall reimburse the Custodian promptly upon request for
the Custodian's documented out-of-pocket expenses incurred form time to time in
complying with its obligations set out in this Supplement in accordance with
Section 3.2(c) of the Agreement.
(c) This Supplement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
(d) This Supplement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Execution and delivery of this
Supplement by facsimile transmission shall constitute execution and delivery of
this Supplement for all purposes, with the same force and effect as execution
and delivery of an originally manually signed copy hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Supplement, all as of
the day and year first above mentioned.
THE THAI FARMERS BANK PUBLIC COMPANY
LIMITED, AS CUSTODIAN
By: /s/ Mr. Boontuck Wungcharoen
------------------------------------
Name: Mr. Boontuck Wungcharoen
Title: Executive Vice President
MFC ASSET MANAGEMENT PUBLIC
COMPANY LIMITED, AS MANAGER
By: /s/ Chesada Loha-unchit
------------------------------------
Name: Dr. Chesada Loha-unchit
Title: President
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THE THAI FUND, INC.
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
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