AMENDMENT
---------
This Amendment is an amendment to the Custodian Services Agreement between The
Xxxxxx Funds (the "Fund") and PFPC Trust Company ("PFPC Trust") dated July 15,
2002, as amended, supplemented or otherwise modified from time to time (the
"Agreement"). The date of this Amendment is as of January 2, 2008.
WHEREAS, PFPC Trust and the Fund wish to amend the Agreement as set forth below.
NOW, THEREFORE, intending to be legally bound, PFPC Trust and the Fund hereby
agree as follows:
1. Section 15(o) of the Agreement is hereby amended and restated
in its entirety as follows:
(o) MATTERS RELATING TO SECURITIES LENDING ARRANGEMENTS. The following
provisions of this Section 15(o) relate to certain matters involving
the Fund's lending of securities to Xxxxxx Xxxxxxx & Co. Incorporated
and/or MS Securities Services Inc. (or such other affiliate of such
foregoing Xxxxxx Xxxxxxx entities as the Fund may inform PFPC Trust in
writing from time to time) (for purposes of this Section 15(o), Xxxxxx
Xxxxxxx & Co. Incorporated, MS Securities Services Inc., and such other
affiliates of such foregoing Xxxxxx Xxxxxxx entities of which the Fund
informs PFPC Trust in writing are each referred to as a "Borrower").
Notwithstanding anything in this Agreement or otherwise to the
contrary, (i) PFPC Trust may process any instruction it receives from a
Borrower (including without limitation instructions relating to free
receipts and free deliveries of assets), so long as PFPC Trust
reasonably believes such instruction to have been originated from the
Borrower, and such an instruction shall be treated as and shall be
deemed to be a Written Instruction under this Agreement, (ii) PFPC
Trust's only obligation with respect to distributions relating to
securities on loan is to receive such distributions as are forwarded to
it by a Borrower (the Fund acknowledges that such distributions are
"manufactured" distributions and are in substitution for the actual
distributions on such securities), (iii) if the Fund is bought-in due
to the failure of a Borrower to return a loaned security by the
settlement date for a trade of such loaned security, PFPC Trust shall
have no responsibility for any liabilities or costs associated with the
buy-in and PFPC Trust shall forward to the applicable Borrower any
information received by PFPC Trust as custodian of such loaned security
relating to the buy-in, (iv) PFPC Trust may make available to a
Borrower such information relating to the Fund and the Fund's portfolio
holdings as the Borrower may request from time to time, (v) PFPC Trust
shall have no responsibility with respect to proxies, proxy voting or
voluntary corporate actions relating to any securities which are on
loan unless such securities are returned from loan to the safekeeping
of PFPC Trust by such time deadline as PFPC Trust may designate from
time to time (with respect to proxies and proxy voting, such time
deadline shall be the record date), (vi) PFPC Trust shall have no
responsibility for determining whether any of the Fund's assets should
or should not be made available for loan, (vii) in the event a Borrower
does not return loaned securities to the safekeeping of PFPC Trust by
the settlement date applicable to the sale of such securities by a
Portfolio (the
"Settlement Date"), the Fund agrees to pay PFPC Trust overdraft charges
imposed by PFPC Trust with respect to such securities (regardless of
the termination date of the loan which relates to such securities)
(such overdraft charges shall be computed by applying the following
calculation and shall be applicable to each day from and including the
Settlement Date and each date thereafter through and including the day
immediately preceding the day such securities are returned: sales
proceeds of the securities sold that a Borrower failed to return on
Settlement Date x (125% of the daily effective Fed Funds rate / 360)),
(viii) PFPC Trust shall have no responsibility for or with respect to
compliance or non-compliance by the Fund, a Borrower or any other
entity with any law, rule, requirement or exemptive order applicable to
the Fund's securities lending activities, and (ix) PFPC Trust shall not
be considered to be the custodian of any collateral relating to the
Fund's securities lending activities until actual receipt thereof by
PFPC Trust. Without limiting the provisions of the foregoing sub-clause
(v) and without imposing any responsibility on PFPC Trust with respect
to any voluntary corporate action, PFPC Trust may in its sole
discretion request the Fund to inform PFPC Trust of the action the Fund
wishes to take with respect to a particular voluntary corporate action
for a particular Portfolio, if so requested the Fund shall inform PFPC
Trust in writing of the action the Fund wishes to take with respect to
such voluntary corporate action, and PFPC Trust may in its sole
discretion issue a Notice of Liability (180 letter) to a Borrower
setting forth the action the Fund wishes to take with respect to such
voluntary corporate action (provided that PFPC Trust shall have no
responsibility relating to any action or inaction by a Borrower with
respect to any Notice of Liability (180 letter)). This Section 15(o)
and the Fund's securities lending activities relate only to U.S. equity
(including American Depository Receipts), U.S. corporate debt and U.S.
government securities. The Fund hereby represents, warrants and
covenants to PFPC Trust that the activities performed by any Borrower
are and will continue to be in compliance in all material respects with
applicable laws, rules, requirements and exemptive orders.
2. As amended by this Amendment, the Agreement shall continue in
full force and effect and be binding upon the parties thereto. This Amendment
may be executed in counterparts, each of which shall be an original, and all of
which together shall constitute one and the same instrument. A facsimile
signature shall be binding upon the party so executing this Amendment.
Capitalized terms used in this Amendment but defined in the Agreement will have
the meaning set forth in the Agreement.
Agreed:
The Xxxxxx Funds PFPC Trust Company
By: /S/ XXXXXX XXXXXX By: /S/ XXX XXXXXXXX, XX
----------------- --------------------
Name: Xxxxxx Xxxxxx Name: Xxx Xxxxxxxx, XX
Title: Vice President Title: Senior Vice President and
Managing Director
