Exhibit 8(d) - First Amendment to Custodian Contract
AMENDMENT TO THE CUSTODIAN CONTRACT
AGREEMENT made by and between State Street Bank and Trust Company (the
"Custodian") and the Xxxxxxx X. Xxxxxxxxx Fund, Inc. (the "Fund"), on behalf
of the Portfolios listed in Schedule B (the "Portfolio(s)").
WHEREAS, the Custodian and the Fund are parties to a custodian contract dated
October 12, 1988 (the "Custodian Contract") governing the terms and conditions
under which the Custodian maintains custody of the securities and other assets
of the Portfolios of the Fund; and
WHEREAS, the Custodian and the Fund desire to amend the Custodian Contract to
provide for the maintenance of the Portfolios' foreign securities, cash and
cash equivalents incidental to transactions in such securities, in the custody
of certain foreign banking institutions and foreign securities depositories
acting as sub-custodians in conformity with the requirements of Rule 17f-5
under the Investment Company Act of 1940;
NOW THEREFORE, in consideration of the premises and contained herein, the
Custodian and the Fund hereby amend the Custodian Contract by the addition of
the following terms and conditions;
1. Appointment of Foreign Sub-Custodians. The Fund hereby authorizes and
instructs the Custodian to employ as sub-custodians for the Portfolios'
securities and other assets maintained outside the United States the foreign
banking institutions and foreign securities depositories designated on
Schedule A hereto ("foreign sub-custodians"). Upon receipt of "Proper
Instructions", as defined in Section 2.17 of the Custodian Contract, together
with a certified resolution of the Fund's Board of Directors, the Custodian
and the Fund may agree to amend Schedule A hereto from time to time to
designate additional foreign banking institutions and foreign securities
depositories to act as sub-custodian. Upon receipt of Proper Instructions, the
Fund may instruct the Custodian to cease the employment of any one or more of
such sub-custodians for maintaining custody of the Portfolios' assets.
2. Assets to be Held. The Custodian shall limit the securities and other
assets maintained in the custody of the foreign sub-custodians to: (a)
"foreign securities", as defined in paragraph (c)(l) of Rule 17f-5 under the
Investment Company Act of 1940, and (b) cash and cash equivalents in such
amounts as the Custodian or the Fund may determine to be reasonably necessary
to effect each Portfolio's foreign securities transactions.
3. Segregation of Securities. The Custodian shall identify on its books as
belonging to each Portfolio, the foreign securities of the Portfolio held by
each foreign sub-custodian. Each agreement pursuant to which the Custodian
employs a foreign banking institution shall require that such institution
establish a custody account for the Custodian on behalf of the Portfolio and
physically segregate in that account, securities and other assets of the
Portfolio.
4. Agreements with Foreign Banking Institutions. Each agreement with a foreign
banking institution approved by the Fund as a sub-custodian shall provide
that: (a) the Fund's assets will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of the foreign banking
institution or its creditors or agents, except claim of payment for their safe
custody or administration; (b) beneficial ownership for the Fund's assets will
be freely transferable without the payment of money or value other than for
custody or administration; (c) adequate records will be maintained identifying
the assets as belonging to the Fund; (d) officers of or auditors employed by,
or other representatives of the Custodian, including to the extent permitted
under applicable law the independent public accountants for the Fund, will be
given access to the books and records of the foreign banking institution
relating to its actions under its agreement with the Custodian; and (e) assets
of the Fund held by the foreign sub-custodian will be
subject only to the instructions of the Custodian or its agents.
5. Access of Independent Accountants of the Fund. Upon request of the Fund,
the Custodian will use its best efforts to arrange for the independent
accountants of the Fund to be afforded access to the books and records of any
foreign banking institution employed as a foreign sub-custodian insofar as
such books and records relate to the performance of such foreign banking
institution under its agreement with the Custodian.
6. Reports by Custodian. The Custodian will supply to the Fund at such times
reasonably requested by the Fund, statements in respect of the securities and
other assets of each Portfolio held by foreign sub-custodians, including but
not limited to an identification of entities having possession of the
Portfolio's securities and other assets and advices or notifications of any
transfers of securities to or from each custodial account maintained by a
foreign banking institution for the Custodian on behalf of the Portfolio
indicating, as to securities acquired for the Portfolio, the identity of the
entity having physical possession of such securities.
7. Transactions in Foreign Custody Account. (a) Except as otherwise provided
in paragraph (b) of this Section 8, the provisions of Sections 2.2 and 2.8 of
the Custodian Contract shall apply, mutatis mutandis (i.e., with the necessary
changes in point of detail) to the foreign securities of the Portfolios held
outside the United States by foreign sub-custodians.
(b) Notwithstanding any provision of the Custodian Contract to the contrary,
settlement and payment for securities received for the account of the
Portfolios and delivery of securities maintained for the account of the
Portfolios may be effected in accordance with the customary established
securities trading or securities processing practices and procedures in the
jurisdiction or market in which the transaction occurs, including, without
limitation, delivering 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.
(c) Securities maintained in the custody of a foreign sub-custodian may be
maintained in the name of such entity's nominee to the same extent as set
forth in Section 2.3 of the Custodian Contract and the Fund agrees to hold any
such nominee harmless to the same extent as provided in paragraph 8 of the
contract between the Custodian and the Fund.
8. Liability of Foreign Sub-Custodians. Each agreement pursuant to which the
Custodian employs a foreign banking institution as a foreign sub-custodian
shall require the institution to exercise reasonable care in the performance
of its duties and to indemnify, and hold harmless, the Custodian and each
Portfolio from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the institution's performance of such
obligations. At the election of the Fund on behalf of any Portfolio, it shall
be entitled to be subrogated to the rights of the Custodian with respect to
any claims against a foreign banking institution as a consequence of any such
loss, damage, cost, expense, liability or claim if and to the extent that any
Portfolio has not been made whole for any such loss, damage, cost, expense,
liability or claim.
9. Liability of Custodian. The Custodian shall be liable for the acts or
omissions of a foreign custodian to the same extent as set forth with respect
to sub-custodians generally in the Custodian Contract and, regardless of
whether assets are maintained in the custody of a foreign banking institution,
a foreign securities depository or a branch of a U.S. bank as contemplated by
paragraph 13 hereof, the Custodian shall not be liable for any loss, damage,
cost, expense, liability or claim resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism or any loss
where the sub-custodian has otherwise exercised reasonable care.
Notwithstanding the foregoing provisions of this paragraph 10, in delegating
custody duties to State Street London Limited, the Custodian shall not be
relieved of any responsibility to any Portfolio for any loss due to such
delegation, except such loss as may result from (a) political risk, exchange
control restrictions, confiscation, expropriation, nationalization,
insurrection, civil
strife or armed hostilities or (b) other losses (excluding a bankruptcy or
insolvency of State Street London Limited not caused by political risk) due to
Acts of God, nuclear incident or other losses under circumstances where the
Custodian and State Street London Limited have exercised reasonable care.
10. Reimbursement for Advances. If the Fund on behalf of a Portfolio requires
the Custodian to advance cash or securities for any purpose including the
purchase or sale of foreign exchange or of contracts for foreign exchange, or
in the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection
with the performance of this Contract, except such as may arise from its or
its nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the Fund shall be
security therefor and should the Fund fail to repay the Custodian promptly,
the Custodian shall be entitled to utilize available cash and to dispose of
the Fund assets to the extent necessary to obtain reimbursement up to the
amount of the Portfolio's individual assets.
11. Monitoring Responsibilities. The Custodian shall furnish annually to the
Fund, during the month of June, information concerning the foreign
sub-custodians employed by the Custodian on behalf of the Fund. Such
information shall be similar in kind and scope to that furnished to the Fund
in connection with the initial approval of this amendment to the Custodian
Contract. It shall include the Custodian's current contract with each such
foreign sub-custodian, updated financial and other information about such
foreign sub-custodians, updated legal opinions regarding applicable foreign
law governing such foreign sub-custodians, and State Street's current foreign
sub-custodian selection criteria and operating procedures. In addition, the
Custodian will promptly inform the Fund in the event that the Custodian learns
of a material adverse change in the financial condition of a foreign
sub-custodian or any loss of the assets of the Portfolio or in the case of any
foreign sub-custodian not the subject of an exemptive order from the
Securities and Exchange Commission is notified by such foreign sub-custodian
that there appears to be a substantial likelihood that its shareholders'
equity will decline below $200 million (U.S. dollars or the equivalent
thereof) or that its shareholders' equity has declined below $200 million (in
each case computed in accordance with generally accepted U.S. accounting
principles). In addition the Custodian will promptly inform the Fund of any
material amendment in the terms of the Custodian's Contract with an approved
foreign sub-custodian.
12. Branches of U.S. Banks. (a) Except as otherwise set forth in this
amendment to the Custodian Contract, the provisions hereof shall not apply
where the custody of the Fund assets is maintained in a foreign branch of a
banking institution which is a "bank" as defined by Section 2(a)(5) of the
Investment Company Act of 1940 meeting the qualification set forth in Section
26(a) of said Act. The appointment of any such branch as a sub-custodian shall
be governed by paragraph 1 of the Custodian Contract.
(b) Cash held for a Portfolio in the United Kingdom shall be maintained in an
interest bearing account established for the Portfolio with the Custodian's
London Branch, which account shall be subject to the direction of the
Custodian, State Street London Limited or both.
13. Applicability of Custodian Contract. Except as specifically superseded or
modified herein, the terms and provisions of the Custodian Contract shall
continue to apply with full force and effect. The Custodian will receive no
additional compensation for its services under this amendment to the Custodian
Contract other than that provided in the Custodian fee schedule as agreed to
from time to time.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 8th day of May, 1989.
XXXXXXX X. XXXXXXXXX FUND, INC.
By: Xxxxxx X. Xxxxxx, Senior Vice President
ATTEST:
Xxxx Xxxxx Xxxx
STATE STREET BANK AND TRUST COMPANY
By: Xxxxxx X. Xxxxxxxx, Vice President
ATTEST:
(Illegible) Assistant Secretary
Schedule A
The following foreign banking institutions and foreign securities depositories
have been approved by the Board of Directors of the Xxxxxxx X. Xxxxxxxxx Fund,
Inc. for use as sub-custodians for the Fund's securities and other assets.
State Street London Limited
Euro-clear Clearance System Societe Cooperative
Schedule B
Xxxxxxxxx Government Short Duration Portfolio
Xxxxxxxxx Short Duration Plus Portfolio
Xxxxxxxxx Intermediate Duration Portfolio
Xxxxxxxxx New York Municipal Portfolio
Xxxxxxxxx Diversified Municipal Portfolio
