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EXHIBIT 8(a)(iii)
AMENDMENT
AMENDMENT made as of this 17th day of May, 1993 to that certain Second
Amended and Restated Custody Agreement dated June 16, 1987 (the "Custody
Agreement") between The Bank of New York as custodian (the "Custodian") and
Short-Term Investment Co. (the "Fund"), a Massachusetts business trust.
WHEREAS, the Custodian and Fund have previously entered into a Custody
Agreement;
WHEREAS, the Fund and the Custodian desire. to amend the Custody Agreement
to provide for the electronic transmission of instructions from the Fund to the
Custodian; and
WHEREAS, the Board of Trustees of the Fund has approved the amendment of
the Custody Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration for the mutual promises set forth, the
Fund and the Custodian agree to amend the Custody Agreement as follows:
1. The definition of the term "Certificate" in Article I is hereby
amended to read in its entirety as follows:
"Certificate" shall mean any notice, instruction, or any other
instrument in writing, authorized or required by this
Agreement to be given to the Custodian which is actually
received by the Custodian and signed on behalf of the Fund by
any two officers, and the term Certificate shall also include
instructions by the Fund to the Custodian communicated by a
Terminal Link.
2. The definition of the term "Officer" in Article I is hereby amended to
read in its entirety as follows:
"Officer" shall be deemed to include the President, any Vice
President, the Secretary, the Treasurer, the Controller, any
Assistant Secretary, any Assistant Treasurer, and any other
person or persons, whether or not any such other person is an
officer of the Fund, duly authorized by the Board of Trustees
of the Fund to execute any Certificate, instruction, notice or
other instrument on behalf of the Fund and listed in the
Certificate annexed hereto as Appendix B or such other
Certificate as may be received by the Custodian from time to
time.
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3. Article I is hereby further amended by the addition of the following
defined term:
"Terminal Link" shall mean an electronic data transmission link
between the Fund and the Custodian requiring in connection with each
use of the Terminal Link by or on behalf of the Fund use of an
authorization code provided by the Custodian and at least two access
codes established by the Fund.
4. A new Article shall be added to read in its entirety as follows:
TERMINAL LINK
1. At no time and under no circumstances shall the Fund be
obligated to have or utilize the Terminal Link, and the provisions of
this Article shall apply if, but only if, the Fund in its sole and
absolute discretion elects to utilize the Terminal Link to transmit
Certificates to the Custodian.
2. The Terminal Link shall be utilized by the Fund only for the
purpose of the Fund providing Certificates to the Custodian with
respect to transactions involving Securities or for the transfer of
money to be applied to the payment of dividends, distributions or
redemptions of Fund Shares, and shall be utilized by the Custodian
only for the purpose of providing notices to the Fund. Such use
shall commence only after the Fund shall have delivered to the
Custodian a Certificate substantially in the form of Appendix 1 and
shall have established access codes and safekeeping procedures to
safeguard and protect the confidentiality and availability of such
access codes. Each use of the Terminal Link by the Fund shall
constitute a representation and warranty that the Terminal Link is
being used only for the purposes permitted hereby, that at least two
Officers have each utilized an access code, that such safekeeping
procedures have been established by the Fund, and that such use does
not contravene the Investment Company Act of 1940, as amended, or the
rules or regulations thereunder.
3. The Fund shall obtain and maintain at its own cost and expense
all equipment and services, including, but not limited to
communications services, necessary for it to utilize the Terminal
Link, and the Custodian shall not be responsible for the reliability
or availability of any such equipment or services.
4. The Fund acknowledges that any data bases made available as
part of, or through the Terminal Link and any proprietary data,
software, processes, information and
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documentation (other than which are or become part of the public domain or are
legally required to be made available to the public) (collectively, the
"Information"), are the exclusive and confidential property of the Custodian.
The Fund shall, and shall cause others to which it discloses the Information,
to keep the Information confidential by using the same care and discretion it
uses with respect to its own confidential property and trade secrets, and shall
neither make nor permit any disclosure without the express prior written
consent of the Custodian.
5. Upon termination of this Agreement for any reason, the Fund shall
return to the Custodian any and all copies of the Information which are in the
Fund's possession or under its control, or which the Fund distributed to third
parties. The provisions of this Article shall not affect the copyright status
of any of the Information. which may be copyrighted and shall apply to all
Information whether or not copyrighted.
6. The Custodian reserves the right to modify the Terminal Link from time
to time without notice to the Fund, except that the Custodian shall give the
Fund notice not less than 75 days in advance of any modification which would
materially adversely affect the Fund's operation, and the Fund agrees not to
modify or attempt to modify the Terminal Link without the Custodian's prior
written consent. The Fund acknowledges that any software or procedures provided
the Fund as part of the Terminal Link are the property of the Custodian and,
accordingly, the Fund agrees that any modifications to the Terminal Link,
whether by the Fund or the Custodian and whether with or without the Custodian's
consent, shall become the property of the Custodian.
7. Neither the Custodian nor any manufacturers and suppliers it utilizes
or the Fund utilizes in connection with the Terminal Link makes any warranties
or representations, express or implied, in fact or in law, including but not
limited to warranties of merchantability and fitness for a particular purpose.
8. The Fund will cause its Officers and employees to treat the
authorization codes and the access codes applicable to Terminal Link with
extreme care, and irrevocably authorizes the Custodian to act in accordance
with and rely on Certificates received by it through the Terminal Link.
The Fund acknowledges that it is its responsibility to assure that only its
Officers use the Terminal Link on its behalf, and that the Custodian shall not
be responsible nor liable for use of the Terminal Link on the Fund's behalf by
persons other than Officers or by only a single Officer.
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9(a). Except as otherwise specifically provided in Section 9 (b) of
this Article, the Custodian shall have no liability for any losses, damages,
injuries, claims, costs or expenses arising out of or in connection with any
failure, malfunction or other problem relating to the Terminal Link except for
money damages suffered as the direct result of the negligence of the Custodian
in an amount not exceeding for any incident $25,000, provided however, that the
Custodian shall have no liability under this Section 9 if the Fund fails to
comply with the provisions of Section 11.
9(b). The Custodian's liability for its negligence in executing or
failing to act in accordance with a Certificate received through Terminal Link
shall be only with respect to a transfer of funds which is not made in
accordance with such Certificate after such Certificate shall have been duly
acknowledged by the Custodian, and shall be contingent upon the Fund complying
with the provisions of section 11 of this Article, and shall be limited to (i)
restoration of the principal amount mistransferred, if and to the extent that
the Custodian would be required to make such restoration under applicable law,
and (ii) the lesser of (A) the Fund's actual pecuniary loss incurred by reason
of its loss of use of the mistransferred funds or the funds which were not
transferred, as the case may be, or (B) compensation for the loss of use of the
mistransferred funds or the funds which were not transferred, as the case may
be, at a rate per annum equal to the average federal funds rate as computed
from the Federal Reserve Bank of New York's daily determination of the
effective rate for federal funds, for the period during which the Fund has lost
use of such funds. In no event shall the Custodian have any liability for
failing to transfer funds in accordance with a Certificate received by the
Custodian through Terminal Link other than through the applicable transfer
module for the particular instructions contained in such Certificate.
10. Without limiting the generality of the foregoing, in no event
shall the Custodian or any manufacturer or supplier of its computer equipment,
software or services relating to the Terminal Link be responsible for any
special, indirect, incidental or consequential damages which the Fund may incur
or experience by reason of its use of the Terminal Link, even if the Custodian
or any manufacturer or supplier has been advised of the possibility of such
damages, nor with respect to the use of the Terminal Link shall the Custodian
or any such manufacturer or supplier be liable for acts of God, or with respect
to the following to the extent beyond such person's reasonable control: machine
or computer breakdown or malfunction, interruption or malfunction of
communication facilities, labor difficulties or any other similar or dissimilar
cause.
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11. The Fund shall notify the Custodian of any errors,
omissions or interruptions in, or delay or unavailability of, the
Terminal Link as promptly as practicable, and in any event within 24
hours after the earliest of (i) discovery thereof, (ii) the business
day on which discovery should have occurred through the exercise of
reasonable care, and (iii) in the case of any error, the date of actual
receipt of the earliest notice which reflects such error, it being
agreed that discovery and receipt of notice may only occur on a
business day. The Custodian shall promptly advise the Fund whenever
the Custodian learns of any errors, omissions or interruption in, or
delay or unavailability of, the Terminal Link.
12. The Custodian shall verify to the Fund, by use of the
Terminal Link, receipt of each Certificate the Custodian receives
through the Terminal Link, and in the absence of such verification the
Custodian shall not be liable for any failure to act in accordance
with such Certificate and the Fund may not claim that such Certificate
was received by the Custodian. Such verification, which may occur
after the Custodian has acted upon such Certificate, shall be
accomplished on the same day on which such Certificate is received.
5. References in this Amendment to the Custody Agreement are to the
Custody Agreement as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers, thereunto duly authorized and their
respective seals to be hereto affixed as of the day and year first above
written.
THE BANK OF NEW YORK
By: ILLEGIBLE
--------------------------------
Title: VICE PRESIDENT
ATTEST:
/s/ XXXXXX X. XXXXXX
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SHORT-TERM INVESTMENT CO.
By: /s/ XXXXXXX X. XXXX
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Title: VICE PRESIDENT
ATTEST:
/s/ XXXXX X. XXXXXXX
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APPENDIX 1
The undersigned, _____________, hereby certifies that he or
she is the duly elected and acting Assistant Secretary of Short-Term
Investments Co. (the "Fund"), further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly held on
_____________ , at which a quorum was at all times present and that such
resolution has not been modified or rescinded and is in full force and effect
as of the date hereof.
RESOLVED, that the officers of the Fund be and they hereby are
authorized to negotiate and execute an amendment to the Fund's
custodian contract in order to implement the Automated Funds Transfer
Processing system available through The Bank of New York; provided,
that such amendment shall not be executed until such time as the
officers of the Fund are satisfied that appropriate safeguards and
controls by The Bank of New York regarding use of such system will
prevent the Fund, its advisor and/or its distributor from being
considered a "self-custodian" under Investment Company Act Rule
17f-4.
IN WITNESS WHEREOF, I hereunto set my hand and the seal of
the Fund as of this ____ day of ___________________, 19__.
___________________________
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APPENDIX B
The undersigned, ____________ Vice President and Assistant
Secretary of Short-Term Investments Co. (the "Company"), a Massachusetts
business trust, hereby certifies that the following individuals serve in the
positions shown with the Company, that each individual has been duly elected or
appointed to each such position and qualified therefor in conformity with the
Company's Declaration of Trust and By-Laws, and that the signatures set forth
opposite their respective names are their true and correct signatures:
Name Position Signature
---- -------- ---------
Xxxxxxx X. Xxxxx Chairman & President _________________
Xxxxxx X. Xxxxxx Executive Vice President _________________
Xxxx X. Xxxxxx Vice President & Treasurer _________________
Xxxxxxx X. Xxxx Vice President & Secretary _________________
Xxxxx X. Xxxxxxx Vice President & _________________
Assistant Secretary
Xxxxx X. Xxxxxxxx Vice President _________________
Xxxx X. Xxxxxxxxx Vice President _________________
Xxxxxxxx X. Xxx Vice President _________________
Xxxx X. Xxxx Vice President _________________
Xxxxx Xxxx Xxxxxx Vice President _________________
X. Xxxxxx Xxxxxxx Vice President _________________
Xxxx X. Xxxxxx Assistant Vice President _________________
& Assistant Treasurer
Xxxxxx X. Xxxxxxxx Assistant Vice President _________________
Xxxxxx X. Xxxxxxx Assistant Vice President _________________
Xxxxxx Xxxxxx Assistant Vice President _________________
Xxxxx X. Xxxxxx Assistant Secretary _________________
Xxxxxxxx X. Xxxxxxxx Assistant Secretary _________________
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Xxxxxx X. Xxxxx Assistant Secretary _________________
Xxxx X. Xxxxxx Assistant Treasurer _________________
In addition, I hereby certify that in accordance with the terms of the
Company's Custodian Agreement, the Custodian for the Company be, and hereby is,
authorized to act upon written instructions executed by any two of the
following individuals and that the signatures set forth opposite their
respective names are their true and correct signatures:
Name Signature
---- ---------
Xxxxx X. Xxxxxxxx __________________
Xxxx X. Xxxxxx __________________
Xxxxxxx X. Xxxxx __________________
Xxxx X. Xxxxxxxxx __________________
Xxxxxx X. Xxxx __________________
Xxxx X. Xxxx __________________
Xxxxxx X. Xxxxxx __________________
Xxxxxxx X. Xxxxx __________________
Xxxxx Xxxx Xxxxxx __________________
Xxxxxxx X. Xxxx __________________
Xxxx X. XxXxxxx __________________
Xxxxxxxx X. Xxxxxx __________________
Xxxxx X. Xxxxxxx __________________
X. Xxxxxx Xxxxxxx __________________
IN WITNESS WHEREOF, I have hereunto set my hand as Assistant
Secretary of the Company and affixed the seal this _____ day of _________,
19___.
(SEAL)
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