Exhibit (j)(3)
AMENDMENT
AMENDMENT made as of June 1, 2001 to that certain Custody Agreement dated
as of June 13, 1986 as amended on July 26, 1999 between Xxxxxxxxx Convertible
Growth & Income Fund, Inc. (the "Fund") and The Bank of New York ("Custodian")
(such Custody Agreement hereinafter referred to as the "Custody Agreement").
WITNESSETH:
WHEREAS, Rule 17f-7 under the Investment Company Act of 1940, as amended
(the "Rule"), was adopted on June 12, 2000 by the Securities and Exchange
Commission;
WHEREAS, the Fund and Custodian desire to amend the Custody Agreement to
conform to the Rule;
NOW, THEREFORE, the Fund and Custodian hereby agree as follows:
A. The following new Article XXI is hereby added to the Custody Agreement:
FOREIGN DEPOSITORIES
1. As used in this Article, the term "Foreign Depository" shall mean each
Eligible Securities Depository as defined in Rule l7f-7 under the Investment
Company Act of 1940, as amended (the "Rule"), identified by Custodian to the
Fund from time to time, and their respective successors and nominees.
2. Notwithstanding any other provision in this Agreement, the Fund hereby
represents and warrants, which representations and warranties shall be
continuing and shall be deemed to be reaffirmed upon any delivery of a
Certificate or any giving of Oral Instructions, Instructions, or Written
Instructions, as the case may be, that the Fund or its investment adviser has
determined that the custody arrangements of each Foreign Depository provide
reasonable safeguards against the custody risks associated with maintaining
assets with such Foreign Depository within the meaning of the Rule.
3. With respect to each Foreign Depository, Custodian shall exercise
reasonable care, prudence, and diligence such as a person having
responsibilities for the safekeeping of the Fund's assets would exercise (i) to
provide the Fund or its investment adviser with an analysis of the custody risks
associated with maintaining assets with the Foreign Depository, and (ii) to
monitor such custody risks on a continuing basis and promptly notify the Fund of
any material change in such risks. The Fund acknowledges and agrees that such
analysis and monitoring shall be made on the basis of, and limited by,
information gathered from Subcustodians, trade associations of which Custodian
is a member from time to time, or through publicly available information
otherwise obtained by Custodian, and shall not include any evaluation of Country
Risks. Custodian will endeavor to include in its analysis and monitoring, among
other things, a Foreign Depository's expertise and market reputation, the
quality of its services, its financial strength, any insurance or
indemnification arrangements, the extent and quality of regulation and
independent examination of the depository, its standing in published ratings,
its internal controls and other procedures for safeguarding investments, and any
related legal protections. In the event that the Fund reasonably believes that
there is a discrepancy between Custodian's performance of its obligations in (i)
or (ii) and the requirements of paragraphs (a)(l)(i)(A) or (B) of the Rule,
respectively, and provides a detailed notification to Custodian, Custodian shall
reasonably cooperate with the Fund and endeavor to resolve any such discrepancy.
As used herein the term "Country Risks" shall mean with respect to any Foreign
Depository: (a) the financial infrastructure of the country in which it is
organized, but not of any Foreign Depository to the extent covered by an
analysis described in clause (i) of this Section, (b) such country's prevailing
settlement practices, (c) nationalization, expropriation or other governmental
actions, (d) such country's regulation of the banking or securities industry,
(e) currency controls, restrictions, devaluations or fluctuations, and
(f) market conditions which affect the order execution of securities
transactions or affect the value of securities.
B. Each party represents to the other that this Amendment has been duly
executed.
C. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts, shall, together,
constitute only one amendment.
IN WITNESS WHEREOF, the Fund and Custodian have caused this Amendment to be
executed by their respective officers, thereunto duly authorized, as of the day
and year first above written.
XXXXXXXXX CONVERTIBLE GROWTH AND INCOME FUND, INC.
By:/s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Treasurer
Tax Identification No: 00-0000000
THE BANK OF NEW YORK
By:/s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Vice President
