Exhibit 8(a)(5)
AMENDMENT TO CUSTODIAN CONTRACT
AGREEMENT made by and between State Street Bank and Trust Company (the
"Custodian") and Xxxxxxx Income Fund (the "Fund").
WHEREAS, the Custodian and the Fund are parties to a custodian contract
dated December 31, 1984 (as amended to date) (the "Custodian Contract")
governing the terms and conditions under which the Custodian maintains custody
of the securities and other assets of the Fund including the securities and
other assets of each Series of the Fund Shares (the term "Fund" herein to
include each such Series); and
WHEREAS, the parties thereto desire to amend the Custodian Contract to
provide for the maintenance of the Fund's foreign securities, and cash
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 convenants contained
herein, the Custodian and the Fund hereby amend the Custodian Contract and agree
to 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 Fund's securities and other assets the foreign banking
institutions and foreign securities depositories designated on Schedule A hereto
("foreign sub-custodians"). Upon receipt of "Proper Instructions", as defined in
Article II, Section P of the Custodian Contract, together with a certified
resolution of the Fund's Trustees, the Custodian and the Fund may agree to amend
Schedule A hereto from time to time to designate additional MG-22a
foreign banking institutions and foreign securities depositories to act as sub-
custodians. 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 Fund's 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)(1) 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 the Fund's foreign
securities transactions.
3. Foreign Securities Depositories
Except as may otherwise be agreed upon in writing by the Custodian and
the Fund, assets of the Fund shall be maintained in foreign securities
depositories only through arrangements implemented by the foreign banking
institutions serving as sub-custodians pursuant to the terms hereof.
4. Segregation of Securities
The Custodian shall identify on its books as belonging to the Fund,
the foreign securities of the Fund 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 Fund and physically segregate in that account,
securities and other assets of the Fund, and, in the event that such institution
deposits the Fund's securities in a foreign securities depository, that it shall
identify on its books as belonging to the Custodian, as agent for the Fund, the
securities so deposited.
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5. Agreements with Foreign Banking Institutions
Each agreement with a foreign banking institution shall be
substantially in the form set forth in Exhibit 1 hereto and 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, except a claim of payment for their safe custody or
administration; (b) beneficial ownership of 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, 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.
6. 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.
7. Reports by Custodian
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 the
Fund held by foreign sub-custodians, including but not limited to an
identification of entities having possession of the Fund's securities and
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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 Fund indicating, as to securities acquired for the
Fund, the identity of the entity having physical possession of such securities.
8. Transactions in Foreign Custody Account
(a) Upon receipt of Proper Instructions, which may be continuing
instructions, when deemed appropriate by the parties, the Custodian shall make
or cause its foreign sub-custodian to transfer, exchange or deliver foreign
securities owned by the Fund, but except to the extent explicitly provided
herein, only in any of the cases specified in Article II, Section B hereof.
(b) Upon receipt of Proper Instruction, which may be continuing
instructions, when deemed appropriate by the parties, the Custodian shall pay
out or cause its foreign sub-custodians to pay out monies of the Fund, but
except to the extent explicitly provided herein, only in any of the cases
specified in Article II, Section H hereof.
(c) Notwithstanding any provision of the Custodian Contract to the
contrary, settlement and payment for securities received for the account of the
Fund and delivery of securities maintained for the account of the Fund 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, 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.
(d) 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
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set forth in Article II, Section C of the Custodian Contract and the Fund agrees
to hold any such nominee harmless from any liability as a holder of record of
such securities.
9. 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 the Fund 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, 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 the
Fund has not been made whole for any such loss, damage, cost, expense, liability
or claim.
10. Liability of Custodian
The Custodian shall be liable for the acts or omissions of a foreign
banking institution 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 12
hereof, the Custodian shall not be liable for any loss, damage, cost, expense,
liability or claim resulting from, or caused by, the direction of or
authorization by the Fund to maintain custody or any securities or cash of the
Fund in a foreign country including, but not limited to, losses resulting from
nationalization, expropriation, currency restrictions, or acts of war or
terrorism.
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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. 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. 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 is notified by a foreign
banking institution employed as a 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).
12. Branches of U.S. Banks
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 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 which meets
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.
13. Applicability of Custodian Contract
Except as specifically superseded or modified herein, the terms and
provisions of the Custodian Contract, as amended, shall continue to apply with
full force and effect to foreign custody arrangements implemented pursuant to
the terms of this amendment to the Custodian Contract.
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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 10th day of March, 1987.
XXXXXXX INCOME FUND
ATTEST: BY: /s/ Xxxxx X. Xxx
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Vice President
/s/ [ILLEGIBLE]
---------------------------------
Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
ATTEST: BY: /s/ [ILLEGIBLE]
------------------------------------
Vice President
/s/ [ILLEGIBLE]
---------------------------------
Assistant Secretary
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Xxxxxxx Income Fund
Schedule A
BANK COUNTRY
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Anz Banking Group Ltd. Australia
Girozentrale Und Bank Der Osterreichischen Austria
Banque Bruxelles Xxxxxxx Belgium
Canada Trust Company Canada
Den Danske Bank Denmark
Kansallis-Osake Pankki Finland
Credit Commercial De France France
Berliner Handels Und Frankfurter Bank Germany
Standard Chartered Bank Hong Kong
Credito Italiano Italy
Sumitomo Trust & Banking Company Limited Japan
Citibank Mexico Mexico
Bank Mees & Hope, N.V. Algemene Bank Nederland Netherlands
Westpac Banking Corp. New Zealand
Christiania Bank Og Kreditkasse Norway
DBS Trustee Ltd. Singapore
Barclays National Bank Ltd. South Africa
Banco Hispano Americano Spain
Skandinaviska Enskilda Banken Sweden
Union Bank of Switzerland Switzerland
State Street London Limited United Kingdom
State Street Boston Corp.
DEPOSITORY COUNTRY
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C.I.K. (Caise Interprofessionelle
de Virements de Titres) Belgium
CDS (The Canadian Depository for
Securities Ltd.) Canada
SICOVAM France
KASSENVEREIN Germany
Instituto Nacionel de Valares Mexico
NECIGEF (Netherlands Clearing Institute
for Giro Securities Deliveries Netherlands
SEGA (Schweizerische Effekten Giro A.G.) Switzerland
EUROCLEAR Transnational
CEDEL Transnational
