EX-99.g(5)
AMENDMENT TO CUSTODIAN AGREEMENT
AMENDMENT TO CUSTODIAN AGREEMENT, effective as of December 31, 2005, by
and between XXXXXX XXXX INVESTMENT FUNDS, a business trust established under the
laws of the Commonwealth of Massachusetts (the "Fund"), and INVESTORS BANK &
TRUST COMPANY, a Massachusetts trust company (the "Bank").
WHEREAS, the Fund and Bank entered into a Custodian Agreement dated
December 28, 1999, as amended from time to time (the "Custodian Agreement"); and
WHEREAS, the Fund and Bank desire to amend the Custodian Agreement as
set forth below.
NOW, THEREFORE, in consideration of the premises set forth herein, the
parties agree as follows:
1. Amendments.
(a) Section 8 of the Custodian Agreement is hereby amended by deleting
such Section 8 in its entirety and by inserting in lieu thereof, the following:
8. MERGER, DISSOLUTION, ETC. OF FUND. In the case of the following
transactions, not in the ordinary course of business, namely, the
merger of a series of the Fund into or the consolidation of a
series of the Fund with another investment company or series
thereof, the sale by a series of the Fund of all, or substantially
all, of its assets to another investment company or series
thereof, or the liquidation or dissolution of a series of the Fund
and distribution of its assets, upon the payment of the fees,
disbursements and expenses of the Bank through the then remaining
term of this Agreement and the payment of any expenses or other
payments to or on behalf of the Fund, the Bank will complete all
actions reasonably necessary to implement such merger,
consolidation, or sale upon the order of the Fund set forth in an
Officers' Certificate, accompanied by a certified copy of a
resolution of the Board authorizing any of the foregoing
transactions. Upon completion of such actions and the payment of
all such fees, disbursements and expenses of the Bank, this
Agreement will terminate and the Bank and the Funds shall be
released from any and all obligations hereunder, provided however
that each party's responsibilities hereunder pursuant to Section
15 shall continue with respect to any actions or omissions
occurring prior to such termination.
(b) Section 16.1 of the Custodian Agreement is hereby amended by
deleting the first paragraph of such Section 16.1 in its entirety and by
inserting in lieu thereof, the following:
16.1 The term of this Agreement shall run from the date hereof
through and including December 31, 2010 (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 any Renewal Term, as the case may be.
(c) The Custodian Agreement is hereby amended by inserting the
following new Section
26:
26. SARBANES OXLEY AND RULE 38A-1 COMPLIANCE. The Bank
agrees to assist the Fund and the Fund's Officers, which shall
include the Chief Compliance Officer ("CCO"), in complying with
the Fund's obligations under Sarbanes Oxley and Rule 38a-1 under
the 1940 Act ("Rule 38a-1"), including but not limited to: (a)
periodically providing the Fund with information reasonably
requested by the Fund's Officers and/or CCO about, and any
available independent third-party reports on, the Bank's Rule
38a-1 compliance program ("Bank's Compliance Program"); (b)
reporting any material deficiencies in the Bank's Compliance
Program or the Bank's controls and procedures relating to the
preparation of the Fund's financial statements to the Fund's
Officers and/or CCO within a reasonable time period, provided that
the Fund's Officers and/or CCO would be notified promptly of any
material deficiencies in the Bank's Compliance Program or the
Bank's controls and procedures relating to the preparation of the
Fund's financial statements that have effected the Fund's N-CSR or
N-Q filings or have had a material impact on the Fund; (c)
reporting any material changes to the Bank's Compliance Program or
material changes to internal controls related to financial
reporting for clients to the Fund within a reasonable time period,
and (d) providing the Fund with such periodic certifications
regarding the foregoing as may reasonably be requested by the
Fund's Officers and/or CCO, or as required by law and (e)
providing the Fund with a legal or compliance senior level officer
to assist in providing general oversight and monitoring of the
Bank's Compliance Program as a vendor pursuant to Rule 38 a-1 and
serve as a central point of contact and general liaison to the
CCO. In this regard, the Bank shall use reasonable efforts to make
available information, including information on the Bank's
internal controls and procedures, reasonably required by the
Fund's Officers and or CCO to allow the Fund to comply with the
requirements of relevant rules, regulations and guidance regarding
the duties of the Fund, its Officers and its Board of Trustees.
(d) Appendix C to the Agreement is hereby amended by deleting such
Appendix C in its entirety and inserting in lieu thereof Appendix C as attached
hereto.
2. MISCELLANEOUS.
a) Except as amended hereby, the Custodian Agreement shall remain in
full force and effect.
b) This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the day and year
first written above.
XXXXXX XXXX INVESTMENT FUNDS
Accepted and approved by: /s/ XXXX XXXXXXXX
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Print Name: Xxxx Xxxxxxxx
Title: CEO, Xxxxxx Xxxx Investment Funds
Date: 10/18/05
Accepted and approved by: /s/ XXXXX XXXXXX
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Print Name: Xxxxx Xxxxxx
Title: CFO, Xxxxxx Xxxx Investment Funds
Date: 10/18/05
INVESTORS BANK & TRUST COMPANY
Accepted and approved by: /s/ Xxxx X. Xxxxxxx
Print Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Chief Financial Officer
Investors Bank & Trust Company
Date: 10/18/05
APPENDIX C
PORTFOLIOS
Xxxxxx Xxxx Total Return Bond Fund
Xxxxxx Xxxx International Equity Fund
Xxxxxx Xxxx International Equity Fund II
Xxxxxx Xxxx Global High Yield Bond Fund
