AMENDMENT
The Custodian Contract dated December 31, 1984 between Xxxxxxx Income Fund
(the "Fund") and State Street Bank and Trust Company (the "Custodian") is
hereby amended as follows:
I. Section II.A is amended to read as follows:
"Holding Securities. The Custodian shall hold and physically segregate in a
separate account for each series ("Portfolio") of the Fund all non-cash property
allocated to each portfolio, including all securities owned by the Fund and
allocated to each Portfolio except that (a) securities which are maintained
pursuant to Section II.L. in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U.S. Department of
Treasury, collectively referred to herein as "Securities System", shall be
identified as belonging to a specified Portfolio and (b) commercial paper of an
issuer for which State Street Bank and Trust Company acts as issuing and paying
agent ("Direct Paper") which is deposited and/or maintained in the Direct Paper
System of the Custodian pursuant to Section II.L.1., shall be identified as
belonging to a specified Portfolio".
II. Sections II.B is amended to read, in relevant part as follows:
"Delivery of Securities. The Custodian shall release and deliver securities
owned by the Fund held by the Custodian or in a Securities System account of the
Custodian or in the Custodian's Direct Paper book entry system account ("Direct
Paper System Account") only upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, and only in the
following cases:
1) . . . .
.
.
.
13) . . . ."
III. Section II.B. 4) through 13) are renumbered 5) through 14) and the
following is added as subparagraph 4):
"4) In the case of a sale effected through the Direct Paper System, in
accordance with the provisions of Section L.1 hereof."
IV. Section II.H(1) is amended to read in relevant part as follows:
"Payment of Fund Monies. Upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, the Custodian
shall pay out monies of the Fund in the following cases only:
1) Upon the purchase of securities, options, futures contracts or options on
futures contracts for the account of the Fund but only (a) against the
delivery of such securities or evidence of title to such
options, futures contracts or options on futures contracts, to the
Custodian (or any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the Investment Act of
1940, as amended, to as as a custodian and has been designated by the
Custodian as its agent for this purpose) registered in the name of the Fund
or in the name of a nominee of the Custodian referred to in Section II.C
hereof or in proper form for transfer; (b) in the case of a purchase
effected through a Securities System, in accordance with the conditions set
forth in Section II.L. hereof;
(c) in the case of a purchase involving the Direct Paper System, in
accordance with the conditions set forth in Section II.L.1.; or (d) in the
case of repurchase agreements entered into between the Fund and the
Custodian, or another bank, or a broker-dealer which is a member of NASD,
(i) against delivery of the securities either in certificate form or
thorugh an entry crediting the Custodian's account in which is holds
securities as a fiduciary, custodian or otherwise for customers at the
Federal Reserve Bank with such securities or (ii) in the case of purchase
by the Fund of securities owned by State Street Bank and Trust Company
("State Street") for its own account, against (A) delivery of the receipt
evidencing purchase by the Fund, (B) earmarking certificates for such
securities to show ownership by the Fund or transfer of such securities
from State Street's proprietary account at the Federal Reserve Bank to its
account described in (i) above, unless the securities are already held in
the latter account, (C) the entry on the records of State Street showing
that such securities are held by the Fund, and (D) delivery of written
evidence of the agreement of State Street to repurchase such securities
from the Fund; provided that, upon receipt of Proper Instructions, the
Custodian shall transfer to another bank or trust company qualified to act
as a custodian under the Investment Company Act of 1940, as amended,
securities held in a Securities System and purchased from State Street
subject to State Street's agreement to repurchase such securities;"
V. Following Section II.L., there is inserted a new Section II.L.1 to read
as follows:
L.1 "Fund Assets Held in the Custodian's Direct Paper System. The Custodian may
deposit and/or maintain securities owned by the Fund for which the Custodian
acts as issuing and paying agent for the direct issue of commercial paper by and
for issuers through the Custodian's book-entry system, referred to herein as the
"Direct Paper System", subject to the following provisions:
1) No transaction relating to securities in the Direct Paper System will be
effected in the absence of Proper Instructions;
2) The Custodian may keep securities of the Fund in the Direct Paper System
only if such securities are represented in an account ("Account") of the
Custodian in the Direct Paper System which shall not include any assets of
the Custodian other than assets held as a fiduciary, custodian or otherwise
for customers;
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3) The records of the Custodian with respect to securities of the Fund
which are maintained in the Direct Paper System shall identify by Portfolio
by book-entry those securities belonging to the Fund;
4) The Custodian shall pay for securities purchased for the account of the
Fund upon the making of an entry on the records of the Custodian to reflect
such payment and transfer of securities to the account of the Fund. The
Custodian shall transfer securities sold for the account of the Fund upon
the making of an entry on the records of the Custodian to reflect such
transfer and receipt of payment for the account of the Fund;
5) The Custodian shall furnish the Fund confirmation of each transfer to or
from the account of the Fund, in the form of a written advice or notice, of
Direct Paper on the next business day following such transfer and shall
furnish to the Fund copies of daily transaction sheets reflecting each
day's transactions in the Direct Paper System for the account of the Fund;
and
6) The Custodian shall provide the Fund with any report on its system of
internal accounting control regarding the Direct Paper System as the Fund
may reasonably request from time to time."
VI. Section IX is hereby amended to read as follows:
Effective Period, Termination and Amendment
This Contract shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, may be amended
at any time by mutual agreement to the parties hereto and may be terminated by
either party by an instrument in writing delivered or mailed, postage prepaid to
the other party, such termination to take effect not sooner than thirty (30)
days after the date of such delivery or mailing; provided, however that the
Custodian shall not act under Section II.L. hereof in the absence of receipt of
an initial certificate of the Secretary or an Assistant Secretary that the Board
of Trustees of the Fund has approved the initial use of a particular Securities
System and the receipt of an annual certificate of the Secretary or an Assistant
Secretary that the Board of Trustees has reviewed the use by the Fund of such
Securities System, as required in each case by Rule 17f-4 under the Investment
Company Act of 1940, as amended and that the Custodian shall not act under
Section II.L.1 hereof in the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board of Trustees has approved the
initial use of the Direct Paper System and the receipt of an annual certificate
of the Secretary or an Assistant Secretary that the Board of Trustees has
reviewed the use by the Fund of the Direct Paper System; provided further,
however, that the Fund shall not amend or terminate this Contract in
contravention of any applicable federal or state regulations, or any provision
of the Declaration of Trust, and further provided, that the Fund may at any time
by action of its Board of Trustees (i) substitute another bank or trust company
for the Custodian by giving notice as described above to the Custodian, or (ii)
immediately terminate this Contract in the event of the appointment of a
conservator or receiver for the Custodian by the Comptroller of the Currency,
the Federal
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Deposit Insurance Corporation or the Commissioner of Banks for the Commonwealth
of Massachusetts or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall likewise
reimburse the Custodian for its costs, expenses and disbursements."
Except as otherwise expressly amended and modified herein, the provisions
of the Custodian Contract shall remain in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed in its name on its behalf by its duly authorized representatives and
its Seal to be hereto affixed as of the 11th day of August, 1987.
ATTEST: XXXXXXX INCOME FUND
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxx
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ATTEST: STATE STREET BANK AND TRUST COMPANY
/s/ Illegible By: /s/ X.X. Xxxxxxx, Jr.
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Assistant Secretary Vice President
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