AMENDMENT TO
CUSTODIAN CONTRACT
Amendment to Custodian Contract between Xxxx Xxxxx Value Trust, Inc. a
regulated investment company organized and existing under the laws of Maryland,
having a principal place of business at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000 (hereinafter called the "Fund"), and State Street Bank and Trust Company,
a Massachusetts trust company, having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called the
"Custodian").
WHEREAS: The Fund and the Custodian are parties to a Custodian Contract
dateD April 16, 1982 (the "Custodian Contract");
WHEREAS: The Fund desires that the Custodian issue a letter of credit
(the "Letter of Credit") on behalf of the Fund for the benefit of ICI Mutual
Insurance Company (the "Company") in accordance with the Continuing Letter of
Credit and Security Agreement and that the Fund's obligations to the Custodian
with respect to the Letter of Credit shall be fully collateralized at all times
while the Letter of Credit is outstanding by, among other things, segregated
assets of the Fund equal to 125% of the face amount to the amount of the Letter
of Credit;
WHEREAS: The Custodian Contract provides for the establishment of
segregated accounts for proper Fund purposes upon Proper Instructions (as
defined in the Custodian Contract); and
WHEREAS: The Fund and the Custodian desire to establish a segregated
account to hold the collateral for the Fund's obligations to the Custodian with
respect to the Letter of Credit and to amend the Custodian Contract to provide
for the establishment and maintenance thereof;
1
WITNESSETH: That in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto hereby amend the Custodian
Contract as follows:
1. Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Custodian Contract.
2. The Fund hereby instructs the Custodian to establish and
maintain a segregated account (the "Letter of Credit Custody
Account") for and in behalf of the Fund as contemplated by
Section 2.13(iv) for the purpose of collateralizing the Fund's
obligations under this Amendment to the Custodian Contract.
3. The Fund shall deposit with the Custodian and the Custodian
shall hold in the letter of Credit Custody Account cash, U.S.
government securities and other high-grade debt securities
owned by the Fund acceptable to the Custodian (collectively
"Collateral Securities") equal to 125% of the face amount to
the amount which the Company may draw under the Letter of
Credit. Upon receipt of such Collateral Securities in the
Letter of Credit Custody Account, the Custodian shall issue
the Letter of Credit to the Company.
4. The fund hereby grants to the Custodian a security interest in
the Collateral Securities from time to time in the Letter of
Credit Custody Account (the "Collateral") to secure the
performance of the Fund's obligations to the Custodian with
respect to the Letter of Credit, including, without
limitation, under Section 5-114(3) of the Uniform Commercial
Code. The Fund shall register the pledge of Collateral and
execute and deliver to the Custodian such powers and
instruments of assignment as may be requested by the Custodian
to evidence and perfect the limited interest in the Collateral
granted hereby.
2
5. The Collateral Securities in the Letter of Credit Custody
Account may be substituted or exchanged (including
substitutions or exchanges which increase or decrease the
aggregate value of the Collateral) only pursuant to Proper
Instructions from the Fund after the Fund notifies the
Custodian of the contemplated substitution or exchange and the
Custodian agrees that such substitution or exchange is
acceptable to the Custodian.
6. Upon any payment made pursuant to the Letter of Credit by the
Custodian to the Company, the Custodian may withdraw from the
Letter of Credit Custody Account Collateral Securities in an
amount equal in value to the amount actually so paid. The
Custodian shall have with respect to the Collateral so
withdrawn all of the rights of a secured creditor under the
Uniform Commercial Code as adopted in the Commonwealth of
Massachusetts at the time of such withdrawal and all other
rights granted or permitted to it under law.
7. The Custodian will transfer upon receipt all income earned on
the Collateral to the Fund custody account unless the
Custodian receives Proper Instructions from the Fund to the
contrary.
8. Upon the drawing by the Company of all amounts which may
become payable to it under the Letter of Credit and the
withdrawal of all Collateral Securities with respect thereto
by the Custodian pursuant to Section 6 hereof, or upon the
termination of the Letter of Credit by the Fund with the
written consent of the Company, the Custodian shall transfer
any Collateral Securities then remaining in the Letter of
Credit Custody Account to another fund custody account.
3
9. Collateral held in the Letter of Credit Custody Account shall
be released only in accordance with the provisions of this
Amendment to Custodian Contract. The Collateral shall at all
times until withdrawn pursuant to Section 6 hereof remain the
property of the Fund, subject only to the extent of the
interest granted herein to the Custodian.
10. Notwithstanding any other termination of the Custodian
Contract, the Custodian Contract shall remain in full force
and effect with respect to the Letter of Credit Custody
Account until transfer of all Collateral Securities pursuant
to Section 8 hereof.
11. The Custodian shall be entitled to reasonable compensation for
its issuance of the Letter of Credit and for its services in
connection with the Letter of Credit Custody Account as agreed
upon from time to time between the Fund and the Custodian.
12. The Custodian Contract as amended hereby, shall be governed
by, and construed and interpreted under, the laws of the
Commonwealth of Massachusetts.
13. The parties agree to execute and deliver all such further
documents and instruments and to take such further action as
may be required to carry out the purposes of the Custodian
Contract, as amended hereby.
14. Except as provided in this Amendment to Custody Contract, the
Custodian Contract shall remain in full force and effect,
without amendment or modification, and all applicable
provisions of the Custodian Contract, as amended hereby,
including, without
4
limitation, Section 8 thereof, shall govern the Letter of Credit Custody Account
and the rights and obligations of the Fund and the Custodian under this
Amendment to Custodian Contract. No provision of this Amendment to Custodian
Contract shall be deemed to constitute a waiver of any rights of the Custodian
under the Custodian Contract or under law.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to
Custodian Contract to be executed in its name and behalf by it duly authorized
representatives and its seal to be hereunder affixed as of the 25 day of
February 1988.
ATTEST:
Xxxx Xxxxx Value Trust, Inc.
By: /s/ Xxxxx X. Xxxx /s/ Xxxxx X. Xxxxxxxxx
ATTEST: State Street Bank and Trust Company
By: /s/ X. Xxxxxxx /s/ X. X. Xxxxxx, Xx.
Assistant Secretary Vice President
