Exhibit (g)(2)
AMENDMENT TO THE CUSTODIAN AGREEMENT
First Amendment dated as of December 29, 2000, to the CUSTODIAN AGREEMENT,
dated November 1, 1995 (the "Agreement"), between Atlas Assets, Inc. (the
"Company") and Investors Bank and Trust Company (the "Bank").
WHEREAS, the Company and the Bank have entered into the Agreement;
WHEREAS, Section 17 of the Agreement provides that the Agreement may be
amended only in writing executed by both parties of the Agreement;
WHEREAS, the Company and the Bank have mutually agreed to certain
modifications to the Agreement;
NOW, THEREFORE, the Company and the Bank hereby agree to amend the
Agreement as follows:
1. MERGER, DISSOLUTION, ETC. OF FUND. The last sentence in Section 8 of the
Agreement is hereby amended by adding the words "through no less than
six (6) months from the date of the notice of such event," after the
words "and the payment of the fees".
2. DUTIES OF THE BANK WITH RESPECT TO PROPERTY OF THE FUND HELD OUTSIDE OF
THE UNITED STATES. Section 13.3 of the Agreement is hereby deleted in
its entirety and replaced with the following:
(a) APPOINTMENT OF FOREIGN CUSTODY MANAGER.
(i) If the Company has appointed the Bank Foreign
Custody Manager (as that term is defined in Rule 17f-5 under the 1940 Act),
the Bank's duties and obligations with respect to the Company's Portfolio
Securities and other assets maintained outside the United States shall be, to
the extent not set forth herein, as set forth in the Delegation Agreement
between the Company and the Bank (the "Delegation Agreement").
(ii) If the Company has appointed any other person or
entity Foreign Custody Manager, the Bank shall act only upon Proper
Instructions from the Company with regard to any of the Company's Portfolio
Securities or other assets held or to be held outside of the United States,
and the Bank shall be without liability for any Claim (as that term is
defined in Section 15 hereof) arising out of maintenance of the Company's
Portfolio Securities or other assets outside of the United States. The
Company also agrees that it shall enter into a written agreement with such
Foreign Custody Manager that shall obligate such Foreign Custody Manager to
provide to the Bank in a timely manner all information required by the Bank
in order to complete its obligations hereunder. The Bank shall not be liable
for any Claim arising out of the failure of such Foreign Custody Manager to
provide such information to the Bank.
(b) SEGREGATION OF SECURITIES. The Bank shall identify on its books
as belonging to the Company the Foreign Portfolio Securities held by each
foreign sub-custodian (each an "Eligible Foreign Custodian") selected by the
Foreign Custody Manager, subject to receipt by the Bank of the necessary
information from such Eligible Foreign Custodian if the Foreign Custody
Manager is not the Bank.
(c) ACCESS OF INDEPENDENT ACCOUNTANTS OF THE COMPANY. If the Bank is
the Company's Foreign Custody Manager, upon request of the Company, the Bank
will use its best efforts to arrange for the independent accountants of the
Company to be afforded access to the books and records of any foreign banking
institution employed as an Eligible Foreign Custodian insofar as such books
and records relate to the performance of such foreign banking institution with
regard to the Company's Portfolio Securities and other assets.
(d) REPORTS BY BANK. If the Bank is the Company's Foreign Custody
Manager, the Bank will supply to the Company the reports required under the
Delegation Agreement.
(e) TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT. Transactions with
respect to the assets of the Company held by an Eligible Foreign Custodian
shall be effected pursuant to Proper Instructions from the Company to the
Bank and shall be effected in accordance with the applicable agreement
between the Foreign custody Manager and such Eligible Foreign Custodian. If
at any time any Foreign Portfolio Securities shall be registered in the name
of the nominee of the Eligible Foreign Custodian, the Company agrees to hold
any such nominee harmless from any liability by reason of the registration of
such securities in the name of such nominee.
Notwithstanding any provision of this Agreement to the contrary,
settlement and payment for Foreign Portfolio Securities received for the
account of the Company and delivery of Foreign Portfolio Securities
maintained for the account of the Company 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.
In connection with any action to be taken with respect to the
Foreign Portfolio Securities held hereunder, including, without limitation,
the exercise of any voting rights, subscription rights, redemption rights,
exchange rights, conversion rights or tender rights, or any other action in
connection with any other right, interest or privilege with respect to such
Securities (collectively, the "Rights"), the Bank shall promptly transmit to
the Company such information in connection therewith as is made available to
the Bank by the Eligible Foreign Custodian, and shall promptly forward to the
applicable Eligible Foreign Custodian any instructions, forms of
certifications with respect to such Rights, and any instructions relating to
the actions to be taken in connection therewith, as the Bank shall receive
from the Company pursuant to Proper Instructions. Notwithstanding the
foregoing, the Bank shall have no further duty or obligation with respect to
such Rights, including, without limitation, the determination of whether the
Company is entitled to participate in such Rights under applicable U.S. and
foreign laws, or the determination of whether any action proposed to be taken
with respect to such Rights by the Company or by the applicable Eligible
Foreign Custodian will comply with all applicable terms and conditions of any
such Rights or any applicable laws or regulations, or market practices within
the market in which such action is to be taken or omitted.
(f) TAX LAW. The Bank shall have no responsibility or liability for
any obligations now or hereafter imposed on the Company or the Bank as
custodian of the Company by the tax laws of any jurisdiction, and it shall be
the responsibility of the Company to notify the Bank of the obligations
imposed on the Company or the Bank as the custodian of the Company by the tax
law of any non-U.S. jurisdiction, including responsibility for witholding and
other taxes, assessments or other governmental charges, certifications and
governmental reporting. The sole
responsibility of the Eligible Foreign Custodian with regard to such tax law
shall be to use reasonable efforts to assist the Company with respect to any
claim for exemption or refund udner the tax law of jurisdictions for which
the Company has provided such information.
3. TERMINATION. Section 14.1 of the Agreement is hereby deleted in its
entirety and replaced with the following:
14.1(a) The term of this Agreement shall be three years commencing upon
the date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this Agreement
shall automatically renew for successive one year terms (each a "Renewal
Term") unless notice of non-renewal is delivered by the non-renewing party to
the other party no later than ninety days prior to the expiration of the
Initial Term or any Renewal Term, as the case may be.
14.1(b) Either party hereto may terminate this Agreement prior to the
expiration of the Intiial Term or any Renewal Term in the event the other
party violates any material provision of this Agreement, provided that the
non-violating party gives written notice of such violation to the violating
party and the violating party does not cure such violation within 90 days of
receipt of such notice.
Section 14 of the Agreement is further amended by adding the following
Sections 14.4 and 14.5 as follows:
14.4 The Company sahll reimburse the Bank for any reasonable expenses
incurred by the Bank in connection with the termination of this Agreement by
the Company, except in the event of termination pursuant to paragraph 14.1(b)
hereof.
14.5 At any time after the termination of this Agreement, the Company
may, upon written request, have reasonable access to the records of the Bank
relating to its performance of its duties as custodian.
4. NOTICES. Sections 16(a) and 16(b) are hereby deleted and replaced with
the following:
(a) In the case of notices sent to the Company to:
Atlas Assets, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Director - Client Management
With a copy to : Xxxx X. Xxxxx, General Counsel
5. SCHEDULE A. Schedule A is deleted in its entirety and replaced with the
attached Schedule A.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be duly executed as an instrument under seal by its officer thereunto duly
authorized as of the date first written above.
ATLAS ASSETS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
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Title: GRP SR VP
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INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Director
