Exhibit (j)(2)
AMENDMENT TO CUSTODY AGREEMENT
between
XXXXXXXXX CONVERTIBLE GROWTH AND INCOME FUND, INC.
and
THE BANK OF NEW YORK
This Amendment Agreement made this 26th day of July, 1999, by and between
XXXXXXXXX CONVERTIBLE GROWTH AND INCOME FUND, INC., a Maryland corporation (the
"Fund"), and THE BANK OF NEW YORK, a New York corporation authorized to do a
banking business (the "Custodian").
WHEREAS, the Fund and the Custodian entered into a Custody Agreement dated
as of February, 1990 (the "Custody Agreement"); and
WHEREAS, the Fund and the Custodian wish to amend the Custody Agreement to
provide for the duties of the Custodian with respect to property of the Fund
held outside of the United States and to foreign currency transactions.
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, and other good
and valuable consideration, the receipt whereof is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
I. Definitions. Capitalized terms which are used herein without definition
and which are defined in the Custody Agreement shall have the same meanings
herein as in the Custody Agreement.
II. Amendment to Custody Agreement. The Fund and the Custodian agree to amend
the Custody Agreements as follows:
A. Article I of the Custody Agreement is hereby amended by adding the
following definitions to such Article:
"Composite Currency Unit" shall mean the European Currency Unit or any
other composite unit consisting of the aggregate of specified amounts
of specified Currencies as such unit may be constituted from time to
time.
"Currency" shall mean money denominated in a lawful currency of any
country or the European Currency Unit.
"FX Transaction" shall mean any transaction for the purchase by one
party of an agreed amount in one Currency against the sale by it to
the other party of an agreed amount in another Currency.
B. The following two articles are hereby added to the end of the Custody
Agreement:
ARTICLE XVIII
DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF ANY SERIES HELD OUTSIDE OF THE UNITED STATES
1. The Custodian is authorized and instructed to employ, as sub-custodian for
each Series' Securities for which the primary market is outside the United
States ("Foreign Securities") and other assets, the foreign banking institutions
and foreign securities depositories and clearing agencies designated on Schedule
I hereto ("Foreign Sub-Custodians"). The Fund may designate any additional
foreign sub-custodian with which the Custodian has an agreement for such entity
to act as the Custodian's agent, as its sub-custodian and any such additional
foreign sub-custodian shall be deemed added to Schedule I. Upon receipt of a
Certificate from the Fund, the Custodian shall cease the employment of any one
or more Foreign Sub-Custodians for maintaining custody of the Fund's assets and
such Foreign Sub-Custodian shall be deemed deleted from Schedule I.
2. Each delivery of a Certificate to the Custodian in connection with a
transaction involving the use of a Foreign Sub-Custodian shall constitute a
representation and warranty by the Fund that its Board of Directors, or its
third party foreign custody manager as defined in Rule 17f-5 under the
Investment Company Act of 1940, as amended, if any, has determined that use of
such Foreign Sub-Custodian satisfies the requirements of such Investment Company
Act of 1940 and such Rule 17f-5 thereunder.
3. The Custodian shall identify on its books as belonging to each Series of
tile Fund the Foreign Securities of such Series held by each Foreign Sub-
Custodian. At the election of the Fund, it shall be entitled to be subrogated
to the rights of the Custodian with respect to any claims by the Fund or any
Series against a Foreign Sub-Custodian as a consequence of any loss, damage,
cost, expense, liability or claim sustained or incurred by the Fund or any
Series if and to the extent that the Fund or such Series has not been made whole
for any such loss, damage, cost, expense, liability or claim.
4. Upon request of the Fund, the Custodian will, consistent with the terms of
the applicable Foreign Sub-Custodian agreement use reasonable efforts to arrange
for the independent accountants of the Fund to be afforded access to the books
and records of any Foreign Sub-Custodian insofar as such books and records
relate to the performance of such Foreign Sub-Custodian under its agreement with
the Custodian on behalf of the Fund.
5. The Custodian will supply to the Fund from time to time, as mutually agreed
upon, statements in respect of the securities and other assets of each Series
held by Foreign Sub-Custodians, including but not limited to an identification
of entities having possession of each Series' Foreign Securities and other
assets, and advices or notifications of any transfers of Foreign Securities to
or from each custodial account maintained by a Foreign Sub-Custodian for the
Custodian on behalf of the Series.
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6. The Custodian shall transmit promptly to the Fund all notices, reports or
other written information received pertaining to the Fund's Foreign Securities,
including without limitation, notices of corporate action, proxies and proxy
solicitation materials.
7. Notwithstanding any provision of this Agreement to the contrary, settlement
and payment for securities received for the account of any Series and delivery
of securities maintained for the account of such Series may be effected in
accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivery of securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later payment for
such securities from such purchaser or dealer.
8. Notwithstanding any other provision in this Agreement to the contrary, with
respect to any losses or damages arising out of or relating to any actions or
omissions of any Foreign Sub-Custodian the sole responsibility and liability of
the Custodian shall be to take appropriate action at the Fund's expense to
recover such loss or damage from the Foreign Sub-Custodian. It is expressly
understood and agreed that the Custodian's sole responsibility and liability
shall be limited to amounts so recovered from the Foreign Sub-Custodian.
ARTICLE XIX
FX TRANSACTIONS
1. Whenever the Fund shall enter into an FX Transaction, the Fund shall
promptly deliver to the Custodian a Certificate or Oral Instructions specifying
with respect to such FX Transaction: (a) the Series to which such FX Transaction
is specifically allocated; (b) the type and amount of Currency to be purchased
by the Fund; (c) the type and amount of Currency to be sold by the Fund; (d) the
date on which the Currency to be purchased is to be delivered; (e) the date on
which the Currency to be sold is to be delivered; and (f) the name of the person
from whom or through whom such currencies are to be purchased and sold. Unless
otherwise instructed by a Certificate or Oral Instructions, the Custodian shall
deliver, or shall instruct a Foreign Sub-Custodian to deliver, the Currency to
be sold on the date on which such delivery is to be made, as set forth in the
Certificate, and shall receive, or instruct a Foreign Sub-Custodian to receive,
the Currency to be purchased on the date as set forth in the Certificate.
2. Where the Currency to be sold is to be delivered on the same day as the
Currency to be purchased, as specified in the Certificate or Oral Instructions,
the Custodian or a Foreign Sub-Custodian may arrange for such deliveries and
receipts to be made in accordance with the customs prevailing from time to time
among brokers or dealers in Currencies, and such receipt and delivery may not be
completed simultaneously. The Fund assumes all responsibility and liability for
all credit risks involved in connection with such receipts and deliveries, which
responsibility and liability shall continue until the Currency to be received by
the Fund has been received in full.
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3. Any FX Transaction effected by the Custodian in connection with this
Agreement may be entered with the Custodian, any office, branch or subsidiary of
The Bank of New York Company, Inc., or any Foreign Sub-Custodian acting as
principal or otherwise through customary banking channels. The Fund may issue a
standing Certificate with respect to FX Transaction but the Custodian may
establish rules or limitations concerning any foreign exchange facility made
available to the Fund. The Fund shall bear all risks of investing in Securities
or holding Currency. Without limiting the foregoing, the Fund shall bear the
risks that rules or procedures imposed by a Foreign Sub-Custodian or foreign
depositories, exchange controls, asset freezes or other laws, rules, regulations
or orders shall prohibit or impose burdens or costs on the transfer to, by or
for the account of the Fund of Securities or any cash held outside the Fund's
jurisdiction or denominated in Currency other than its home jurisdiction or the
conversion of cash from one Currency into another currency. The Custodian shall
not be obligated to substitute another Currency for a Currency (including a
Currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected by such law,
regulation, rule or procedure. Neither the Custodian nor any Foreign Sub-
Custodian shall be liable to the Fund for any loss resulting from any of the
foregoing events.
III. Effect of Amendment. Except as hereinabove modified and amended, the
Custody Agreement will remain unaltered and in fall force and effect and is
hereby ratified and confirmed in all respects as amended.
IV. Governing Law. This Amendment shall be governed by and construed according
to the laws of the State of New York without giving effect to conflicts of laws
principles thereof
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed in duplicate on the day and year first above written.
XXXXXXXXX CONVERTIBLE GROWTH AND INCOME FUND, INC.
Attest: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Asst. Treas. Title: Senior Vice President
THE BANK OF NEW YORK
Attest: /s/ Xxxxxxxx XxXxxxxxxx By: /s/ Xxxxx X. Xxxxx
Name: Xxxxxxxx XxXxxxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
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