ex-99.B(g)nccaamend
AMENDMENT TO CUSTODIAN AGREEMENT
AMENDMENT, dated as of July 1, 2001, to the Custodian Agreement dated
May 13, 1998 ("Agreement") as amended to date, between XXXXXXX & XXXX
ADVISORS NEW CONCEPTS FUND, INC. ("Fund"), having a place of business at
0000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000, and UMB BANK, N. A.
("Custodian"), having a place of business at 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000.
WHEREAS, the Fund and the Custodian have previously entered into the
Agreement pursuant to which the Custodian provides custody and related
services to the Fund, including the use of foreign subcustodians and
depositories, subject to the terms and conditions set forth therein;
WHEREAS, the Securities and Exchange Commission ("SEC") adopted Rule
17f-7 under the Investment Company Act of 1940 (the "1940 Act") concerning
arrangements for foreign securities depositories;
WHEREAS, pursuant to the provisions of Rule 17f-7(a)(1), the Custodian
has agreed to assume, subject to the terms and conditions set forth herein,
certain analysis and monitoring functions related to foreign securities
depositories;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the Fund and the Custodian agree as follows.
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Agreement. All references hereunder to the 1940 Act
and to the rules and regulations thereunder shall be deemed to be a
reference to such Act and its rules and regulations as they may be amended
from time to time.
1. The Agreement is amended by deleting the first paragraph under the
heading "ARTICLE IV SUBCUSTODIANS" and inserting the following amended
paragraph in its place:
From time to time, in accordance with the relevant provisions of
this Agreement, (i) the Custodian may appoint one or more
Domestic Subcustodians and Special Subcustodians (each as
hereinafter defined) to act on behalf of the Fund; and (ii) the
Custodian may be directed, pursuant to an agreement between the
Fund and the Custodian ("Delegation Agreement"), to appoint a
Domestic Subcustodian to perform the duties of the Foreign
Custody Manager (as such term is defined in Rule 17f-5 under the
1940 Act) ("Approved Foreign Custody Manager") so long as the
Domestic Subcustodian is so eligible under the 1940 Act. Such
Delegation Agreement shall provide that the appointment of any
Domestic Subcustodian as the Approved Foreign Custody Manager
must be governed by a written agreement between the Custodian and
the Domestic Subcustodian, which provides for compliance with
Rule 17f-5. The Approved Foreign Custody Manager may appoint a
Foreign Sub-Subcustodian or Interim Sub-Subcustodian (each as
hereinafter defined) in accordance with this Article IV. For
purposes of this Agreement, all Domestic Subcustodians, Special
Subcustodians, Foreign Sub-Subcustodians and Interim Sub-
Subcustodians shall be referred to collectively as
"Subcustodians".
2. The Agreement is further amended by deleting the last sentence of
Section 4.01 in its entirety and inserting the following revised sentence
in its place:
Each such duly approved Domestic Subcustodian and the countries
where Foreign Sub-Subcustodians through which they may hold
securities and other Assets of the Fund shall be as agreed upon
by the parties hereto in writing, from time to time, in
accordance with the provisions of Section 9.04 hereof (the
"Subcustodian List").
3. The Agreement is further amended by deleting Section 4.02 in its
entirety and inserting the following amended Section 4.02 in its place:
(a) Foreign Sub-Subcustodians. The Approved Foreign Custody
Manager may appoint any entity meeting the requirements of an
Eligible Foreign Custodian, as such term is defined in Rule 17f-
5(a)(1) under the 1940 Act, and which term shall also include a
bank that qualifies to serve as a custodian of assets of
investment companies under Section 17(f) of the 1940 Act or by
SEC order is exempt therefrom (each a "Foreign Sub-
Subcustodian"), provided that the Approved Foreign Custody
Manager's appointments of such Eligible Foreign Custodians shall
at all times be governed by an agreement that complies with Rule
17f-5.
(b) Interim Sub-Subcustodians. Notwithstanding the foregoing, in
the event that the Fund shall invest in a security or other Asset
to be held in a country in which the Approved Foreign Custody
Manager has not appointed a Foreign Sub-Subcustodian or for which
the Fund has otherwise directed that a specific Foreign Sub-
Subcustodian be used, the Custodian shall, or shall cause the
Approved Foreign Custody Manager to, promptly notify the Fund in
writing by facsimile transmission or in such other manner as the
Fund and Custodian shall agree in writing of the unavailability
of an approved Foreign Sub-Subcustodian in such country; and upon
the receipt of Special Instructions, the Custodian shall, or
shall cause the Approved Foreign Custody Manager to, appoint or
approve any Person (as hereinafter defined) designated by the
Fund in such Special Instructions, to hold such security or other
Asset. The subcustodian agreement between the Custodian and the
Interim Sub-Subcustodian (as hereinafter defined) shall comply
with the provisions of the 1940 Act and the rules and regulations
thereunder (including Rule 17f-5, if applicable) and the terms
and provisions of this Agreement. The Custodian shall comply with
Section 4.02(a) hereof with respect to the appointment of an
Interim Sub-Subcustodian. (Any Person appointed or approved as
the sub-subcustodian pursuant to this Section 4.02(b) is
hereinafter referred to as an "Interim Sub-Subcustodian.")
(c) In the event that the Approved Foreign Custody Manager or
its delegate reasonably determines that such Person will not
provide delegation services (i) in a country in which the Fund
has directed that the Fund shall invest in a security or other
Asset or (ii) with respect to a specific Foreign Sub-Subcustodian
which the Fund has directed be used, the Approved Foreign Custody
Manager or the Custodian (or its agent), as applicable, shall be
entitled to rely on any such instruction provided pursuant to
Section 4.02(b) as a Proper Instruction and shall have no duties
or liabilities under this Agreement with respect to such
arrangement save those that it may undertake specifically in
writing with respect to each particular instance; provided that
the Delegation Agreement and this Agreement shall not constitute
the Approved Foreign Custody Manager or the Custodian (or its
agent), as the exclusive delegate of the Fund for purposes of
Rule 17f-5 and, particularly where such Person does not agree to
provide fully the services under this Agreement and the
Delegation Agreement to the Fund with respect to a particular
country or specific Foreign Sub-Subcustodian, the Fund may
delegate such services to another delegate pursuant to Rule 17f-
5.
4. The Agreement is further amended by deleting the first paragraph of
Section 4.05 and inserting the following amended first paragraph of Section
4.05:
Section 4.05. Certification Regarding Foreign Sub-Subcustodians.
Upon request of the Fund, the Custodian shall deliver, or cause
any Approved Foreign Custody Manager to deliver, to the Fund a
certificate stating: (i) the identity of each Foreign Sub-
Subcustodian then acting on behalf of the Custodian; (ii) the
countries in which the Eligible Securities Depositories (as
defined in Section 4.06) through which each Foreign Sub-
Subcustodian is then holding cash, securities and other Assets of
the Fund; and (iii) such other information as may be requested by
the Fund to ensure compliance with rules and regulations under
the 1940 Act.
5. The Agreement is further amended by inserting the following new Section
4.06 after Section 4.05:
Section 4.06. Securities Depositories.
(a) The Custodian (or its agent) may place and maintain the
Fund's Foreign Assets (as defined in Rule 17f-5 under the 0000
Xxx) with an Eligible Securities Depository (as defined in Rule
17f-7, which term shall include any other securities depository
for which the SEC by exemptive order has permitted registered
investment companies to maintain their assets).
(b) The Custodian (or its agent) shall, for evaluation by
the Fund or its adviser, provide an analysis of the custody risks
associated with maintaining the Fund's Foreign Assets with each
Eligible Securities Depository utilized directly or indirectly by
the Custodian as of the date hereof (or, in the case of an
Eligible Securities Depository not so utilized as of the date
hereof, prior to the initial placement of the Fund's Foreign
Assets at such Depository) and at which any Foreign Assets of the
Fund are held or are expected to be held. The Custodian (or its
agent) shall monitor the custody risks associated with
maintaining the Fund's Foreign Assets at each such Eligible
Securities Depository on a continuing basis and shall promptly
notify the Fund or its adviser of any material changes in such
risks.
(c) Based on the information available to it in the
exercise of diligence, the Custodian (or its agent) shall
determine the eligibility under Rule 17f-7 of each foreign
securities depository before maintaining the Fund's Foreign
Assets therewith and shall promptly advise the Fund if any
Eligible Securities Depository ceases to be so eligible. A list
of Eligible Securities Depositories used by the Custodian
directly or indirectly as of the date hereof is attached as
Appendix A. Notwithstanding Section 9.04 hereof, Eligible
Securities Depositories may, subject to Rule 17f-7, be added to
the list from time to time.
(d) Withdrawal of Assets. If an arrangement with an
Eligible Securities Depository no longer meets the requirements
of Rule 17f-7, the Custodian (or its agent) will withdraw the
Fund's Foreign Assets from such depository as soon as reasonably
practicable.
(e) Standard of Care. In fulfilling its responsibilities
under this Section 4.06, the Custodian will exercise reasonable
care, prudence and diligence.
6. The Agreement is further amended by inserting the following new Section
4.07 after the new Section 4.06:
Section 4.07. The Fund shall not place or maintain any of the
Fund's Foreign Assets in any country, and shall as promptly as
practicable withdraw the Fund's Foreign Assets from any country,
that is identified in the Global Custody Network Listing provided
by the Custodian (or its agent) as a country where the liability
or responsibility of the Approved Foreign Custody Manager or the
Custodian (or its agent) is conditioned or predicated on the
ability of the Approved Foreign Custody Manager or the Custodian
(or its agent) to recover damages from the Foreign Sub-
Subcustodian in such country.
7. The Agreement is further amended by deleting Section 5.01(b) in its
entirety and inserting the following amended Section 5.01(b) in its place:
(b) Actions Prohibited by Applicable Law, Etc. In no event shall
the Custodian incur liability hereunder if the Custodian or any
Subcustodian or Securities System, or any subcustodian, Eligible
Securities Depository utilized by any such Subcustodian, or any
nominee of the Custodian or any Subcustodian (individually, a
"Person") is prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides
shall be performed or omitted to be performed, by reason of: (i)
any provision of any present or future law or regulation or order
of the United States of America, or any state thereof, or of any
foreign country, or political subdivision thereof or of any court
of competent jurisdiction (and the Custodian nor any other Person
shall not be obligated to take any action contrary thereto); or
(ii) any "Force Majeure," which for purposes of this Agreement,
shall mean any circumstance or event which is beyond the
reasonable control of the Custodian, a Subcustodian or any agent
of the Custodian or a Subcustodian and which adversely affects
the performance by the Custodian of its obligations hereunder, by
the Subcustodian of its obligations under its subcustody
agreement or by any other agent of the Custodian or the
Subcustodian, unless in each case, such delay or nonperformance
is caused by the negligence, misfeasance or misconduct of the
Custodian. Such Force Majeure events may include any event caused
by, arising out of or involving (a) an act of God, (b) accident,
fire, water damage or explosion, (c) any computer, system or
other equipment failure or malfunction caused by any computer
virus or the malfunction or failure of any communications medium,
(d) any interruption of the power supply or other utility
service, (e) any strike or other work stoppage, whether partial
or total, (f) any delay or disruption resulting from or
reflecting the occurrence of any Sovereign Risk (as defined
below), (g) any disruption of, or suspension of trading in, the
securities, commodities or foreign exchange markets, whether or
not resulting from or reflecting the occurrence of any Sovereign
Risk, (h) any encumbrance on the transferability of a currency or
a currency position on the actual settlement date of a foreign
exchange transaction, whether or not resulting from or reflecting
the occurrence of any Sovereign Risk, or (i) any other cause
similarly beyond the reasonable control of the Custodian.
Subject to the Custodian's general standard of care set forth in
Section 5.01(a) hereof and the requirements of Section 17(f) of
the 1940 Act and Rules 17f-5 and 17f-7 thereunder, the Custodian
shall not incur liability hereunder if any Person is prevented,
forbidden or delayed from performing, or omits to perform, any
act or thing which this Agreement provides shall be performed or
omitted to be performed by reason of any (i) "Sovereign Risk,"
which for the purpose of this Agreement shall mean, in respect of
any jurisdiction, including the United States of America, where
investments are acquired or held under this Agreement, (a) any
act of war, terrorism, riot, insurrection or civil commotion, (b)
the imposition of any investment, repatriation or exchange
control restrictions by any governmental authority, (c) the
confiscation, expropriation or nationalization of any investments
by any governmental authority, whether de facto or de jure, (d)
any devaluation or revaluation of the currency, (e) the
imposition of taxes, levies or other charges affecting
investments, (f) any change in the applicable law, or (g) any
other economic or political risk incurred or experienced that is
not directly related to the economic or financial conditions of
the Eligible Foreign Custodian, except as otherwise provided in
this Agreement or the Delegation Agreement, or (ii) "Country
Risk," which for the purpose of this Agreement shall mean, with
respect to the acquisition, ownership, settlement or custody of
investments in a jurisdiction, all risks relating to, or arising
in consequence of, systemic and markets factors affecting the
acquisition, payment for or ownership of investments, including
(a) the prevalance of crime and corruption except for crime or
corruption by the Eligible Foreign Custodian, or its employees,
directors or officers, (b) the inaccuracy or unreliability of
business and financial information (unrelated to the Approved
Foreign Custody Manager's duties imposed by Rule 17f-5(c) under
the 1940 Act or to the duties imposed on the Custodian by Rule
17f-7 under the 1940 Act), (c) the instability or volatility of
banking and financial systems, or the absence or inadequacy of an
infrastructure to support such systems, (d) custody and
settlement infrastructure of the market in which such investments
are transacted and held, (e) the acts, omissions and operation of
any Eligible Securities Depository, it being understood that this
provision shall not affect any liability that the Custodian
otherwise would have under the Delegation Agreement or with
respect to foreign subcustodians and securities depositories
under this Agreement, (f) the risk of the bankruptcy or
insolvency of banking agents, counterparties to cash and
securities transactions, registrars or transfer agents, (g) the
existence of market conditions which prevent the orderly
execution or settlement of transactions or which affect the value
of assets, and (h) the laws relating to the safekeeping and
recovery of the Fund's Foreign Assets held in custody pursuant to
the terms of this Agreement; provided, however, that, in
compliance with Rule 17f-5, neither Sovereign Risk nor Country
Risk shall include the custody risk of a particular Eligible
Foreign Custodian of the Fund's Foreign Assets.
8. The Agreement is further amended by deleting Section 9.03 in its
entirety and inserting the following amended Section 9.03 in its place:
Section 9.03. Entire Agreement. This Agreement and the Delegation
Agreement, as amended from time to time, constitute the entire
understanding and agreement of the parties thereto with respect
to the subject matter therein and accordingly, supercedes as of
the effective date of this Agreement any custodian agreement
heretofore in effect between the Fund and the Custodian.
9. All references throughout the Agreement to "Securities Depository or
Clearing Agency" are hereby changed to "Eligible Securities Depository".
Under the heading "ARTICLE VIII DEFINED TERMS", the reference to Section
4.02(a) for the definition of "Securities Depository or Clearing Agency" is
changed to Section 4.06(a). In addition, the list of defined terms is
amended to include "Foreign Custody Manager" with a reference to ARTICLE
IV, "Force Majeure" with a reference to Section 5.01(b), "Country Risk"
with a reference to Section 5.01(b), and "Foreign Assets" with a reference
to Section 4.06(a).
10. Except as modified hereby, the Agreement is confirmed in all respects.
* * * * *
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXX & XXXX ADVISORS NEW UMB BANK, N. A.
CONCEPTS FUND, INC.
By: /s/Xxxxxxx X. Xxxxxxxx By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Vice President Title: Senior Vice Xxxxxxxxx
XXX # 000000
XXXXXXXX X
