Exhibit (j)(2)
AMENDMENT TO CUSTODY AGREEMENT
between
XXXXXXXX CONVERTIBLE FUND, INC.
and
THE BANK OF NEW YORK
This Amendment Agreement made this 26th day of July, 1999, by and
between XXXXXXXX CONVERTIBLE 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
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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.
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
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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.
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.
XXXXXXXX CONVERTIBLE 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
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Attest: /s/ Xxxxxxxx XxXxxxxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Name: Xxxxxxxx XxXxxxxxxx Name:
Title: V.P. Title: Xxxxx X. Xxxxx, VP
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