Exhibit (g)(2)
AMENDMENT NO. 1 TO MASTER CUSTODIAN AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") to that certain Master Custodian
Agreement dated as of September 1, 2005, as amended, modified and supplemented
from time to time (the "Custodian Agreement"), is entered into as of
September 15, 2006, by and among each of the entities set forth on Appendix A
attached hereto and State Street Bank and Trust Company (the "Custodian").
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Custodian Agreement.
WHEREAS, the Custodian provides custody and accounting services to the
Funds, pursuant to and as more particularly described in the Custodian
Agreement;
WHEREAS, the parties hereto wish to amend the terms of the Custodian
Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment to Custodian Agreement.
The Custodian Agreement is hereby amended to add the following new
Section 17A:
"Section 17A. Loan Servicing.
Section 17A.1 General. The following provisions shall apply with respect to
a Fund's investments, property or assets in the nature of loans, or interests
or participations in loans, including without limitation interests in
syndicated bank loans and bank loan participations (collectively, "Loans").
Section 17A.2 Safekeeping. Instruments, certificates, agreements and/or
other documents which the Custodian may receive in respect of Loans, if any
(collectively "Financing Documents"), from time to time, shall be held by the
Custodian at its offices in Boston, Massachusetts.
Section 17A.3 Duties of the Custodian. The Custodian shall accept such
Financing Documents, if any, in respect of Loans as may be delivered to it from
time to time by a Fund. The Custodian shall be under no obligation to examine
the contents or determine the sufficiency of any such Financing Documents or to
provide any certification with respect thereto, whether received by the
Custodian as original documents, photocopies, by facsimile or otherwise.
Without limiting the foregoing, the Custodian is under no duty to examine any
such Financing Documents to determine whether necessary steps have been taken
or requirements met in respect of the assignment or transfer of the related
Loan or applicable interest or participation therein. The Custodian shall be
entitled to assume the genuineness, sufficiency and completeness of any
Financing Documents received, and the genuineness and due authority of any
signature appearing thereon. Notwithstanding any term of this Agreement to the
contrary, with respect to any Loans, (i) the Custodian shall be under no
obligation to determine, and shall have no liability for, the sufficiency of,
or to require delivery of, any instrument, document or agreement constituting,
evidencing or representing such Loan, other than to receive such Financing
Documents, if any, as may be delivered or caused to be delivered to it by a
Fund (or its investment adviser on its behalf), (ii) without limiting the
generality of the foregoing, delivery of any such Loan may be made to the
Custodian by, and may be represented solely by, delivery to the Custodian of a
facsimile or photocopy of an assignment agreement (an "Assignment Agreement")
or a confirmation or certification from the Fund (or its investment adviser) to
the effect that it
has acquired such Loan and/or has received or will receive, and will deliver to
the Custodian, appropriate Financing Documents constituting, evidencing or
representing such Loan (such confirmation or certification, together with any
Assignment Agreement, collectively, an "Assignment Agreement or Confirmation"),
in any case without delivery of any promissory note, participation certificate
or similar instrument (collectively, an "Instrument"), (iii) if an original
Instrument shall be or shall become available with respect to any such Loan, it
shall be the sole responsibility of the Fund to make or cause delivery thereof
to the Custodian, and the Custodian shall be under no obligation at any time or
times to determine whether any such original Instrument has been issued or made
available with respect to such Loan, and shall not be under any obligation to
compel compliance by the Fund to make or cause delivery of such Instrument to
the Custodian, and (iv) any reference to Financing Documents appearing in this
Section 17A shall be deemed to include, without limitation, any such Instrument
and/or Assignment Agreement or Confirmation.
If payments with respect to a Loan ("Loan Payment") are not received by the
Custodian on the date on which they are due, as reflected in the Payment
Schedule (as such term is defined in Section 17A.4 below) of the Loan ("Payment
Date"), or in the case of interest payments, not received either on a scheduled
interest payable date, as reported to the Custodian by the Fund, or its
investment adviser on its behalf, for the Loan (the "Interest Payable Date"),
or in the amount of their accrued interest payable, the Custodian shall
promptly, but in no event later than one business day after the Payment Date or
the Interest Payable Date, give telephonic notice to the party obligated under
the Financing Documents to make such Loan Payment (the "Obligor") of its
failure to make timely payment, and if such payment is not received within
three business days of its due date, shall notify the Fund of such Obligor's
failure to make the Loan Payment. The Custodian shall have no responsibility
with respect to the collection of Loan Payments which are past due, other than
the duty to notify the Obligor and the Fund as provided herein.
The Custodian shall have no responsibilities or duties whatsoever under this
Agreement, with respect to Loans or the Financing Documents, except for such
responsibilities as are expressly set forth herein. Without limiting the
generality of the foregoing, the Custodian shall have no obligation to preserve
any rights against prior parties or to exercise any right or perform any
obligation in connection with the Loans or any Financing Documents (including,
without limitation, no obligation to take any action in respect of or upon
receipt of any consent solicitation, notice of default or similar notice
received from any bank agent or Obligor, except that the Custodian shall
undertake reasonable efforts to forward any such notice to the Fund). In case
any question arises as to its duties hereunder, the Custodian may request
instructions from the applicable Fund and shall be entitled at all times to
refrain from taking any action unless it has received Proper Instructions from
the Fund or its investment adviser, and the Custodian shall in any event have
no liability, risk or cost for any action taken, with respect to a Loan,
pursuant to and in compliance with Proper Instructions.
The Custodian shall be only responsible and accountable for Loan Payments
actually received by it and identified as for the account of a Fund; any and
all credits and payments credited to such Fund, with respect to Loans, shall be
conditional upon clearance and actual receipt by the Custodian of final payment
thereon. The Custodian shall promptly, upon a Fund's request pursuant to Proper
Instructions, release any Financing Documents being held on behalf of such
Fund. Without limiting the foregoing, the Custodian shall not be deemed to have
or be charged with knowledge of the sale of any Loan, unless and except to the
extent it shall have received written notice and instruction from the Fund with
respect thereto, and except to the extent it shall have received the sale
proceeds thereof. In no event shall the Custodian be under any obligation or
liability to make any advance of its own funds in respect of any Loan.
Section 17A.4 Responsibility of Funds. With respect to each Loan held by the
Custodian hereunder in accordance with the provisions hereof, the applicable
Fund shall (a) cause the Financing Documents evidencing such Loan to be
delivered to the Custodian; (b) include with such Financing Documents an
amortization schedule of payments (the "Payment Schedule") identifying the
amount and
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due dates of scheduled principal payments, the Interest Payable Date(s) and
related payment amount information, and such other information with respect to
the related Loan and Financing Documents as the Custodian reasonably may
require in order to perform its services hereunder (collectively, "Loan
Information"), in such form and format as the Custodian reasonably may require;
(c) take, or cause its investment adviser to take, all actions necessary to
acquire good title to such Loan (or the participation therein, as the case may
be), as and to the extent intended to be acquired; and (d) cause the Custodian
to be named as its nominee for payment purposes under the Financing Documents
or otherwise provide for the direct payment of the Payments to the Custodian.
The Custodian shall be entitled to rely upon the Loan Information provided to
it without any obligation on the part of the Custodian independently to verify,
investigate, recalculate, update or otherwise confirm the accuracy or
completeness thereof; and the Custodian shall have no liability for any delay
or failure on the part of a Fund in providing necessary Loan Information to the
Custodian, or for any inaccuracy therein or incompleteness thereof. With
respect to each such Loan, the Custodian shall be entitled to rely on any
information and notices it may receive from time to time from the related bank
agent, Obligor or similar party with respect to the related Loan, and shall be
entitled to update its records on the basis of such information or notices
received, without any obligation on its part independently to verify,
investigate or recalculate such information. Notwithstanding any other
provision of this Agreement, the Custodian shall have no responsibility to
ensure that any investment by a Fund with respect to Loans has been authorized.
Section 17A.5 Applicable Funds and Portfolios. The provisions of this
Section 17A shall apply initially only to Xxxxxx Xxxxxx Bond Fund, a series of
Xxxxxx Xxxxxx Funds I, and Xxxxxx Xxxxxx Strategic Income Fund, a series of
Xxxxxx Xxxxxx Funds II. Additional Funds or Portfolios may elect to become
subject to the provisions of this Section 17A by the delivery by the applicable
Fund of Special Instructions to the Custodian, specifying the Funds/Portfolios
and requesting that the Custodian provide loan servicing to such
Funds/Portfolios.
2. No Other Modifications. Except to the extent amended hereby, the terms of
the Custodian Agreement shall remain unchanged and unaffected hereby and shall
remain in full force and effect to the extent of, and in accordance with, its
terms. In the event of any conflict between the terms of the Custodian
Agreement prior to this Amendment and this Amendment, the terms of this
Amendment shall prevail.
3. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
4. Counterparts. This Amendment may be signed in counterparts, which taken
together shall constitute one and the same instrument.
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In Witness Whereof, each of the parties has caused this Amendment to be
executed in its name and on its behalf by its duly authorized representative as
of the date first set forth above.
Each of the Entities Set Forth on
Appendix A Attached Hereto
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
State Street Bank and Trust Company
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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Appendix A
Management Investment Companies Registered with the SEC
and Portfolios thereof, if any
Xxxxxx Xxxxxx Funds I
Xxxxxx Xxxxxx Bond Fund 9/1/05
Xxxxxx Xxxxxx Global Bond Fund 9/1/05
Xxxxxx Xxxxxx Small Cap Value Fund 9/1/05
Xxxxxx Xxxxxx Fixed Income Fund 9/1/05
Xxxxxx Xxxxxx Inflation Protected Securities Fund 9/1/05
Xxxxxx Xxxxxx Institutional High Income Fund 9/1/05
Xxxxxx Xxxxxx Intermediate Duration Fixed Income Fund 9/1/05
Xxxxxx Xxxxxx Investment Grade Fixed Income Fund 9/1/05
Xxxxxx Xxxxxx High Income Opportunities Fund 9/1/05
Xxxxxx Xxxxxx Securitized Asset Fund 9/1/05
Xxxxxx Xxxxxx Funds II
Xxxxxx Xxxxxx Aggressive Growth Fund 9/1/05
Xxxxxx Xxxxxx Small Cap Growth Fund 9/1/05
Xxxxxx Xxxxxx Value Fund 9/1/05
Xxxxxx Xxxxxx Global Markets Fund (f/k/a Worldwide Fund) 9/1/05
Xxxxxx Xxxxxx Tax-Managed Equity Fund 9/1/05
Xxxxxx Xxxxxx Growth Fund 9/1/05
Xxxxxx Xxxxxx High Income Fund 10/1/05
Xxxxxx Xxxxxx Investment Grade Bond Fund 9/1/05
Xxxxxx Xxxxxx Limited Term Government and Agency Fund 10/1/05
Xxxxxx Xxxxxx Municipal Income Fund 10/1/05
Xxxxxx Xxxxxx Research Fund 9/1/05
Xxxxxx Xxxxxx Strategic Income Fund 10/1/05
Ixis Advisor Cash Management Trust
Money Market Series 9/1/05
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Ixis Advisor Funds Trust I
CGM Advisor Targeted Equity Fund 9/1/05
Xxxxxxxxxx International Fund 9/1/05
IXIS U.S. Diversified Portfolio 9/1/05
IXIS Value Fund 9/1/05
Xxxxxx Xxxxxx Core Plus Bond Fund 10/1/05
Xxxxxxx Xxxxxx Small Cap Value Fund 9/1/05
Westpeak Capital Growth Fund 9/1/05
IXIS Income Diversified Portfolio 11/1/05
Ixis Advisor Funds Trust II
Xxxxxx Xxxxxx Massachusetts Tax Free Income Fund 10/1/05
Xxxxxx Associates Large Cap Value Fund 9/1/05
Ixis Advisor Funds Trust III
Xxxxxx Associates Focused Value Fund 9/1/05
IXIS Equity Diversified Portfolio 9/1/05
IXIS Moderate Diversified Portfolio 9/1/05
Ixis Advisor Funds Trust IV
AEW Real Estate Fund 9/1/05
AEW Real Estate Income Fund (closed end) 9/1/05
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