CUSTODY AGREEMENT
AGREEMENT dated as of March 20, 1989, between WPG FUND (the "Trust"),
a Massachusetts business trust, having its principal office and place of
business at Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and BOSTON SAFE
DEPOSIT AND TRUST COMPANY (the "Custodian"), a Massachusetts trust company with
its principal place of business at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
W I T N E S S E T H
That for and in consideration of the mutual promises hereinafter set
forth, the Trust and the Custodian agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement or in any Schedules to this
Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
(a) "Authorized Person" shall be deemed to include the President,
and any Vice President, the Secretary, the Treasurer, or any
other person, whether or not any such person is an officer or
employee of the Trust, duly authorized by the Board of Trustees
of the Trust to give Oral Instructions and Written Instructions
on behalf of the Trust and listed in the certification annexed
hereto as Appendix A or such other certification as may be
received by the Custodian from time to time.
(b) "Book-Entry System" shall mean the Federal Reserve/ Treasury
book-entry system for United States and federal agency
Securities, its successor or successors and its nominee or
nominees.
(c) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement
to be given to the Custodian, which is actually received by the
Custodian and signed on behalf of the Trust by such Authorized
Person as the Trust shall designate.
(d) "Declaration of Trust" shall mean the Declaration of Trust of
the Trust dated April 13, 1988 as the same may be amended from
time to time.
(e) "Depository" shall mean The Depository Trust Company ("DTC"),
a clearing agency registered with the Securities and Exchange
Commission under Section 17(A) of the Securities Exchange Act of
1934,
as amended, its successor or successors and its nominee or
nominees, in which the Custodian is hereby specifically
authorized to make deposits. The term "Depository" shall further
mean and include any other person to be named in a Certificate
authorized to act as a depository under the 1940 Act, its
successor or successors and its nominee or nominees.
(f) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principal by the Government of the United States or agencies
or instrumentalities thereof, commercial paper, bank certificates
of deposit, bankers' acceptances and short-term corporate
obligations, where the purchase or sale of such securities
normally requires settlement in federal funds on the same day as
such purchase or sale, and repurchase and reverse repurchase
agreements with respect to any of the foregoing types of
securities.
(g) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by
the Custodian to be an Authorized Person.
(h) "Prospectus" shall mean the Trust's current prospectus and
statement of additional information relating to the registration
of the Trust's Shares under the Securities Act of 1933, as
amended.
(i) "Shares" refers to the shares of beneficial interest of the
Trust.
(j) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities and investments from time to time owned by the
Trust.
(k) "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Trust.
(l) "Written Instructions" shall mean a written communication
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person by any
system whereby the receiver of such communication is able to
verify through codes or otherwise with a reasonable degree of
certainty the authenticity of the sender of such communication.
(m) The "1940 Act" refers to the Investment Company Act of 1940,
and the Rules and Regulations thereunder, all as amended from
time to time.
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2. APPOINTMENT OF CUSTODIAN.
(a) The Trust hereby constitutes and appoints the Custodian as
custodian of all the Securities and moneys at the time owned by
or in the possession of the Trust during the period of this
Agreement.
(b) The Custodian hereby accepts appointment as such custodian
for the Trust and agrees to perform the duties thereof as
hereinafter set forth.
3. COMPENSATION.
(a) The Trust will compensate the Custodian for its services
rendered under this Agreement in accordance with the fees set
forth in the Fee Schedule annexed hereto as Schedule A and
incorporated herein. Such Fee Schedule does not include
out-of-pocket disbursements of the Custodian for which the
Custodian shall be entitled to xxxx separately. Out-of-pocket
disbursements shall include, but shall not be limited to, the
items specified in the Schedule of Out-of-Pocket charges annexed
hereto as Schedule B and incorporated herein, which schedule may
be modified by the Custodian upon not less than thirty days prior
written notice to the Trust.
(b) Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule A of this Agreement a
revised Fee Schedule, dated and signed by an Authorized Person of
the Trust and a duly authorized officer of the Custodian.
(c) The Custodian will xxxx the Trust as soon as practicable
after the end of each calendar month, and said xxxxxxxx will be
detailed in accordance with the Fee Schedule. The Trust will
promptly pay to the Custodian the amount of such billing.
4. CUSTODY OF CASH AND SECURITIES.
(a) RECEIPT AND HOLDING OF ASSETS. The Trust will deliver or
cause to be delivered to the Custodian all Securities and moneys
owned by it at any time during the period of this Agreement. The
Custodian will not be responsible for such Securities and moneys
until actually received by it. The Trust shall instruct the
Custodian from time to time in its sole discretion, by means of a
Certificate, or, in connection with the purchase or sale of Money
Market Securities, by means of Oral Instructions or Written
Instructions as to the manner in which and in what amounts
Securities and moneys of the Trust are to be deposited on behalf
of the
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Trust in the Book-Entry System; or the Depository provided,
however, that prior to the deposit of Securities of the Trust in
the Book-Entry System or the Depository, including a deposit in
connection with the settlement of a purchase or sale, the
Custodian shall have received a Certificate specifically
approving such deposits by the Custodian in the Book-Entry System
or the Depository.
(b) ACCOUNTS AND DISBURSEMENTS. The Custodian shall establish and
maintain a separate account for the Trust and shall credit to the
separate account of the Trust all moneys received by it for the
account the Trust and shall disburse the same only:
1. In payment for Securities purchased for the Trust, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with respect to
the Shares of the Trust, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect
to the Shares of the Trust, as provided in Section 8 hereof;
4. In payment for Shares which have been redeemed by the
Trust, as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect to
Money Market Securities, Oral Instructions or Written
Instructions, setting forth the name and address of the
person to whom the payment is to be made, the amount to be
paid and the purpose for which payment is to be made; or
6. In payment of fees and in reimbursement of the expenses
and liabilities of the Custodian attributable to the Trust,
as provided in Section 11(h) hereof.
(c) CONFIRMATION AND STATEMENTS. Promptly after the close of
business on each day, the Custodian shall furnish the Trust
with confirmations and a summary of all transfers to or from
the account of the Trust during said day. Where securities
purchased by the Trust are in a fungible bulk of securities
registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of the
Depository or the Book-Entry System, the Custodian shall by
book entry or otherwise identify the quantity of those
securities belonging to the Trust. At least monthly, the
Custodian shall furnish the Trust with
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a detailed statement of the Securities and moneys held for the
Trust under this Agreement.
(d) REGISTRATION OF SECURITIES AND PHYSICAL SEPARATION. All
Securities held for the Trust which are issued or issuable only
in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that form;
all other Securities held for the Trust may be registered in the
name of the Trust, in the name of any duly appointed registered
nominee of the Custodian as the Custodian may from time to time
determine, or in the name of the Book-Entry System or the
Depository or their successor or successors, or their nominee or
nominees. The Trust reserves the right to instruct the Custodian
as to the method of registration and safekeeping of the
Securities of the Trust. The Trust agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to hold
or deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of the Book-Entry
System or the Depository, any Securities which it may hold for
the account of the Trust and which may from time to time be
registered in the name of the Trust. The Custodian shall hold all
such Securities which are not held in the Book-Entry System or
the Depository in a separate account for the Trust in the name of
the Trust physically segregated at all times from those of any
other person or persons.
(e) COLLECTION OF INCOME AND OTHER MATTERS AFFECTING SECURITIES.
Unless otherwise instructed to the contrary by a Certificate, the
Custodian by itself, or through the use of the Book-Entry System
or the Depository with respect to Securities therein deposited,
shall with respect to all Securities held for the Trust in
accordance with this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon
all Securities which may mature or be called, redeemed or
retired, or otherwise become payable; Notwithstanding the
foregoing, the Custodian shall have no responsibility to the
Trust for monitoring or ascertaining any call, redemption or
retirement dates with respect to put bonds which are owned
by the Trust and held by the Custodian or its nominees. Nor
shall the Custodian have any responsibility or liability to
the Trust for any loss by the Trust for any missed payments
or other defaults resulting therefrom; unless the Custodian
receives timely notification from the Trust specifying the
time, place and manner for the presentment of any
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such put bond owned by the Trust held by the Custodian or
its nominee. The Custodian shall not be responsible and
assumes no liability for the Trust for the accuracy or
completeness of any notification the Custodian may furnish
to the Trust with respect to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter
in effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for
the account of each Portfolio all rights and similar
Securities issued with respect to any Securities held by the
Custodian hereunder for the Trust.
(f) DELIVERY OF SECURITIES AND EVIDENCE OF AUTHORITY. Upon
receipt of Written Instructions and not otherwise, except for
subparagraphs 5, 6, 7, and 8 which may be effected by Oral or
Written Instructions, the Custodian, directly or through the use
of the Book-Entry System or the Depository, shall:
1. Execute and deliver or cause to be executed and delivered
to such persons as may be designated in such Written
Instructions proxies, consents, authorizations, and any
other instruments whereby the authority of the Trust as
owner of any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for
the Trust in exchange for other Securities or cash issued or
paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation or recapitalization of
any corporation, or the exercise of any conversion
privilege;
3. Deliver or cause to be delivered any Securities held for
the Trust to any protective committee, reorganization
committee or other person in connection with the
reorganization, refinancing, merger, consolidation or
recapitalization or sale of assets of any corporation, and
receive and hold under the terms of this Agreement in the
separate account for the Trust such certificates
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of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of
the assets to the Trust and take such other steps as shall
be stated in said Certificate to be for the purpose of
effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Trust;
5. Deliver Securities owned by the Trust upon sale of such
Securities for the account of the Trust pursuant to Section
5;
6. Deliver Securities owned by the Trust upon the receipt of
payment in connection with any repurchase agreement related
to such Securities entered into by the Trust;
7. Deliver Securities owned by the Trust to the issuer
thereof or its agent when such Securities are called,
redeemed, retired or otherwise become payable; provided,
however, that in any such case the cash or other
consideration is to be delivered to the Custodian;
Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Trust for monitoring or ascertaining
any call, redemption or retirement dates with respect to the
put bonds which are owned by the Trust and held by the
Custodian or its nominee. Nor shall the Custodian have any
responsibility or liability to the Trust for any loss by the
Trust for any missed payment or other default resulting
therefrom; unless the Custodian received timely notification
from the Trust specifying the time, place and manner for the
presentment of any such put bond owned by the Trust and held
by the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability to the Trust for the
accuracy or completeness of any notification the Custodian
may furnish to the Trust with respect to put bonds;
8. Deliver Securities owned by the Trust for delivery in
connection with any loans of securities made by the Trust
but only against receipt of adequate collateral as agreed
upon from time to time by the Custodian and the Trust which
may be in the form of cash or obligations issued by the
United States government, its agencies or instrumentalities;
9. Deliver Securities owned by the Trust for delivery as
security in connection with any borrowings by the Trust
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requiring a pledge of Trust assets, but only against receipt
of amounts borrowed;
10. Deliver Securities owned by the Trust upon receipt of
instructions from the Trust for delivery to the Transfer
Agent or to the holders of Shares in connection with
distributions in kind, as may be described from time to time
in the Trust's Prospectus, in satisfaction of requests by
holders of Shares for repurchase or redemption; and
11. Deliver Securities owned by any Portfolio for any other
proper business purpose, but only upon receipt of, in
addition to Written Instructions, a certified copy of a
resolution of the Board of Trustees signed by an Authorized
Person and certified by the Secretary of the Trust,
specifying the Securities to be delivered, setting forth the
purpose for which such delivery is to be made, declaring
such purpose to be a proper business purpose, and naming the
person or persons to whom delivery of such Securities shall
be made.
(g) ENDORSEMENT AND COLLECTION OF CHECKS ETC. The Custodian is
hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received by the Custodian
for the account of the Trust.
5. PURCHASE AND SALE OF INVESTMENT OF THE TRUST.
(a) Promptly after each purchase of Securities for the Trust, the
Trust shall deliver to the Custodian (i) with respect to each
purchase of Securities which are not Money Market Securities,
Written Instruction, and (ii) with respect to each purchase of
Money Market Securities, either Written or Oral Instruction, in
either case specifying with respect to each purchase: (1) the
name of the issuer and the title of the Securities; (2) the
number of shares or the principal amount purchased and accrued
interest, if any; (3) the date of purchase and settlement; (4)
the purchase price per unit; (5) the total amount payable upon
such purchase; (6) the name of the person from whom or the broker
through whom the purchase was made, if any; (7) whether or not
such purchase is to be settled through the Book-Entry System or
the Depository; and (8) whether the Securities purchased are to
be deposited in the Book-Entry System or the Depository. The
Custodian shall receive all Securities purchased by or for the
Trust and upon receipt of such Securities shall pay out of the
moneys held for the account of the Trust the total amount payable
upon such purchase, provided that the same conforms
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to the total amount payable as set forth in such Written or Oral
Instructions.
(b) Promptly after each sale of Securities of the Trust, the
Trust shall deliver to the Custodian (i) with respect to each
sale of Securities which are not Money Market Securities, Written
Instruction, and (ii) with respect to each sale of Money Market
Securities, either Written or Oral Instruction, in either case
specifying with respect to such sale: (1) the name of the issuer
and the title of the Securities; (2) the number of shares or
principal amount sold, and accrued interest, if any; (3) the date
of sale; (4) the sale price per unit; (5) the total amount
payable to the Trust upon such sale; (6) the name of the broker
through whom or the person to whom the sale was made; and (7)
whether or not such sale is to be settled through the Book-Entry
System or the Depository. The Custodian shall deliver or cause to
be delivered the Securities to the broker or other person
designated by the Trust upon receipt of the total amount payable
to the Trust upon such sale, provided that the same conforms to
the total amount payable to the Trust as set forth in such
Written Instruction or such Oral Instructions. Subject to the
foregoing, the Custodian may accept payment in such form as shall
be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers
in Securities.
6. LENDING OF SECURITIES.
If the Trust is permitted by the terms of the Declaration of
Trust and as disclosed in its Prospectus to lend Securities,
within 24 hours after each loan of Securities, the Trust shall
deliver to the Custodian Written Instruction specifying with
respect to each such loan: (1) the name of the issuer and the
title of the Securities; (2) the number of shares or the
principal amount loaned; (3) the date of loan and delivery; (4)
the total amount to be delivered to the Custodian, against the
loan of the Securities, including the amount of cash collateral
and the premium, if any, separately identified; (5) the name of
the broker, dealer or financial institution to which the loan was
made; and (6) whether the Securities loaned are to be delivered
through the Book-Entry System or the Depository.
Promptly after each termination of a loan of Securities, the
Trust shall deliver to the Custodian Written Instruction
specifying with respect to each such loan termination and return
of Securities: (1) the name of the issuer and the title of the
Securities to be returned; (2) the number of shares or the
principal amount to be returned; (3) the date of termination; (4)
the total amount to be delivered by the Custodian
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(including the cash collateral for such Securities minus any
offsetting credits as described in said Written Instructions);
(5) the name of the broker, dealer or financial institution from
which the Securities will be returned; and (6) whether such
return is to be effected through the Book-Entry System or the
Depository. The Custodian shall receive all Securities returned
from the broker, dealer or financial institution to which such
Securities were loaned and upon receipt thereof shall pay, out of
the moneys of the Trust, the total amount payable upon such
return of Securities as set forth in the Written Instruction.
Securities returned to the Custodian shall be held as they were
prior to such loan.
7. PAYMENT OF DIVIDENDS OR DISTRIBUTIONS.
(a) The Trust shall furnish to the Custodian the resolution of
the Board of Trustees of the Trust certified by the Secretary (i)
authorizing the declaration of dividends of the Trust on a
specified periodic basis and authorizing the Custodian to rely on
Oral or Written Instructions specifying the date of the
declaration of such dividend or distribution, the date of payment
thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to the
shareholders of record as of the record date and the total amount
payable to the Transfer Agent on the payment date, or (ii)
setting forth the date of declaration of any dividend or
distribution by of the Trust, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of
record as of the record date and the total amount payable to the
Transfer Agent on the payment date.
(b) Upon the payment date specified in such resolution, Oral
Instructions, or Written Instructions, as the case may be, the
Custodian shall pay out the moneys specifically allocated to and
held for the account of the Trust the total amount payable to the
Transfer Agent of the Trust.
8. SALE AND REDEMPTION OF SHARES OF THE TRUST.
(a) Whenever the Trust shall sell any Shares of the Trust, the
Trust shall deliver or cause to be delivered to the Custodian a
Written Instruction duly specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for
the sale of such Shares.
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(b) Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the separate account of the
Trust.
(c) Upon issuance of any Shares of the Trust in accordance with
the foregoing provisions of this Section 8, the Custodian shall
pay, all original issue or other taxes required to be paid in
connection with such issuance upon the receipt of Written
Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of the
Trust are redeemed, the Trust shall cause the Transfer Agent to
promptly furnish to the Custodian Written Instructions,
specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
(e) Upon receipt from the Transfer Agent of advice setting forth
the number of Shares of the Trust received by the Transfer Agent
for redemption and that such Shares are valid and in good form
for redemption, the Custodian shall make payment to the Transfer
Agent the total amount specified in the Written Instruction
issued pursuant to paragraph (d) of this Section 8.
(f) Notwithstanding the above provisions regarding the redemption
of Shares, whenever such Shares are redeemed pursuant to any
check redemption privilege which may from time to time be offered
by the Trust, the Custodian, unless otherwise instructed by
Written Instruction shall, upon receipt of advice from the Trust
or its agent stating that the redemption is in good form for
redemption in accordance with the check redemption procedure,
honor the check presented as part of such check redemption
privilege out of the moneys of the Trust.
9. INDEBTEDNESS.
(a) The Trust will cause to be delivered to the Custodian by any
bank (excluding the Custodian) from which the Trust borrows money
for temporary administrative or emergency purposes using
Securities as collateral for such borrowings, a notice or
undertaking in the form currently employed by any such bank
setting forth the amount which such bank will loan to the Trust
against delivery of a stated amount of collateral. The Trust
shall promptly deliver to the Custodian Written or Oral
Instructions stating with respect to each such borrowing: (1) the
name of the bank; (2) the amount and terms of the borrowing,
which
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may be set forth by incorporating by reference an attached
promissory note, duly endorsed by the Trust, or other loan
agreement; (3) the time and date, if known, on which the loan is
to be entered into (the "borrowing date"); (4) the date on which
the loan becomes due and payable; (5) the total amount payable to
the Trust on the borrowing date; (6) the market value of
Securities to be delivered as collateral for such loan, including
the name of the issuer, the title and the number of shares or the
principal amount of any particular Securities; (7) whether the
Custodian is to deliver such collateral through the Book-Entry
System or the Depository; and (8) a statement that such loan is
in conformance with the 1940 Act and the Trust's Prospectus.
(b) Upon receipt of Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the
borrowing date the specified collateral and the executed
promissory note, if any, against delivery by the lending bank of
the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in the Written
or Oral Instructions. The Custodian may, at the option of the
lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the
lending bank by virtue of any promissory note or loan agreement.
The Custodian shall deliver as additional collateral in the
manner directed by the Trust from time to time such Securities as
may be specified in Written or Oral Instructions to collateralize
further any transaction described in this Section 9. The Trust
shall cause all Securities released from collateral status to be
returned directly to the Custodian, and the Custodian shall
receive from time to time such return of collateral as may be
tendered to it. In the event that the Trust fails to specify in
Written or Oral Instructions all of the information required by
this Section 9, the Custodian shall not be under any obligation
to deliver any Securities. Collateral returned to the Custodian
shall be held hereunder as it was prior to being used as
collateral.
10. PERSONS HAVING ACCESS TO ASSETS OF THE TRUST.
(a) No Trustee, officer, employee or agent of the Trust, and no
officer, director, employee or agent of the investment adviser,
shall have physical access to the assets of the Trust held by the
Custodian or be authorized or permitted to withdraw any
investments of the Trust, nor shall the Custodian deliver any
assets of the Trust to any such person. No officer, director,
employee or agent of the Custodian who holds any similar position
with the Trust or the investment adviser shall have access to the
assets of the Trust.
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(b) The individual employees of the Custodian duly authorized by
the Board of Directors of the Custodian to have access to the
assets of the Trust are listed in the certification annexed
hereto as Appendix C. The Custodian shall advise the Trust of any
change in the individuals authorized to have access to the assets
of the Trust by written notice to the Trust accompanied by a
certified copy of the authorizing resolution of the Custodian's
Board of Directors approving such change.
(c) Nothing in this Section 10 shall prohibit any officer,
employee or agent of the Trust, or any officer, director,
employee or agent of the investment adviser, from giving Oral
Instructions or Written Instructions to the Custodian or
executing a Certificate so long as it does not result in delivery
of or access to assets of the Trust prohibited by paragraph (a)
of this Section 10.
11. CONCERNING THE CUSTODIAN.
(a) STANDARD OF CONDUCT. Except as otherwise provided herein,
neither the Custodian nor its nominee shall be liable for any
loss or damage, including counsel fees, resulting from its action
or omission to act or otherwise, except for any such loss or
damage arising out of its own negligence or willful misconduct.
The Custodian may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel to the Trust or of
its own counsel, at the expense of the Trust, and shall be fully
protected with respect to anything done or omitted by it in good
faith in conformity with such advice or opinion. The Custodian
shall be liable to the Trust for any loss or damage resulting
from the use of the Book-Entry System or the Depository arising
by reason of any negligence, misfeasance or misconduct on the
part of the Custodian or any of its employees or agents.
(b) LIMIT OF DUTIES. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation to
inquire into, and shall not be liable for:
1. The validity of the issue of any Securities purchased by
the Trust, the legality of the purchase thereof, or the
propriety of the amount paid therefor;
2. The legality of the sale of any Securities by the Trust,
or the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
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4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
dividend or other distribution of the Trust;
6. The legality of any borrowing for temporary or emergency
administrative purposes.
(c) NO LIABILITY UNTIL RECEIPT. The Custodian shall not be liable
for, or considered to be the Custodian of, any money, whether or
not represented by any check, draft, or other instrument for the
payment of money, received by it on behalf of the Trust until the
Custodian actually receives and collects such money directly or
by the final crediting of the account representing the Trust's
interest in the Book-Entry System or the Depository. The
Custodian shall exercise diligence appropriate to first class
mutual fund custodians in pursuing payment on any such
instrument, or any dividend, interest or other receivable of the
Trust.
(d) AMOUNTS DUE FROM TRANSFER AGENT. The Custodian shall not be
under any duty or obligation to take action to effect collection
of any amount due to the Trust from the Transfer Agent nor to
take any action to effect payment or distribution by the Transfer
Agent of any amount paid by the Custodian to the Transfer Agent
in accordance with this Agreement.
(e) COLLECTION WHERE PAYMENT REFUSED. The Custodian shall not be
under any duty or obligation to take action to effect collection
of any amount, if the Securities upon which such amount is
payable are in default, or if payment is refused after due demand
or presentation, unless and until (a) it shall be directed to
take such action by a Certificate and (b) it shall be assured to
its satisfaction of reimbursement of its costs and expenses in
connection with any such action.
(f) APPOINTMENT OF AGENTS AND SUB-CUSTODIANS. The Custodian may
appoint one or more banking institutions, including but not
limited to banking or other qualified institutions located in
foreign countries, to act as Depository or Depositories or as
Sub-Custodian or as Sub-Custodians of Securities and moneys at
any time owned by the Trust, upon terms and conditions specified
in a Certificate. The Custodian shall use reasonable care in
selecting a Depository and/or Sub-Custodian located in a country
other than the United States ("Foreign Sub-Custodian"), and shall
oversee the maintenance of any Securities or moneys of the Trust
by any Foreign Sub-Custodian. Any selection of and form of
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contract with a Foreign Custodian shall be subject to approval by
the Trust that such selection and contract are consistent with
the requirements of Rule l7f-5 (and Rule 17f-4, if applicable)
under the 1940 Act, and the Custodian shall provide the Trust
with such information and recommendations as may be reasonably
necessary as a basis for such approval.
(g) NO DUTY TO ASCERTAIN AUTHORITY. The Custodian shall not be
under any duty or obligation to ascertain whether any Securities
at any time delivered to or held by it for the Trust are such as
may properly be held by the Trust under the provisions of the
Declaration of Trust and the Prospectus.
(h) COMPENSATION OF THE CUSTODIANS. The Custodian shall be
entitled to receive, and the Trust agrees to pay to the
Custodian, such compensation as may be agreed upon from time to
time between the Custodian and the Trust. The Custodian may
charge against any moneys of the Trust such compensation and any
expenses incurred by the Custodian in the performance of its
duties pursuant to such agreement with respect to the Trust. The
Custodian shall also be entitled to charge against any money held
by it the amount of any loss, damage, liability or expense
incurred with respect to the Trust, including counsel fees, for
which it shall be entitled to reimbursement under the provisions
of this Agreement.
The expenses which the Custodian may charge against such
account include, but are not limited to, the expenses of
Sub-Custodians and foreign branches of the Custodian incurred in
settling transactions outside of Boston, Massachusetts or New
York City, New York involving the purchase and sale of Securities
of any Portfolio.
(i) RELIANCE ON CERTIFICATES AND INSTRUCTIONS. The Custodian
shall be entitled to rely upon any Certificate, notice or other
instrument in writing received by the Custodian and reasonably
believed by the Custodian to be genuine and to be signed by the
required number of officers of the Trust. The Custodian shall be
entitled to rely upon any Written Instructions or Oral
Instructions actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by
the Custodian to be genuine and to be given by an Authorized
Person. The Trust agrees to forward to the Custodian Written
Instructions from an Authorized Person confirming such Oral
Instructions in such manner so that such Written Instructions are
received by the Custodian, whether by hand delivery, telex or
otherwise, by the close of business on the same day that such
Oral
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Instructions are given to the Custodian. The Trust agrees that
the fact that such confirming instructions are not received by
the Custodian shall in no way affect the validity of the
transactions or enforceability of the transactions hereby
authorized by the Trust. The Trust agrees that the Custodian
shall incur no liability to the Trust in acting upon Oral
Instructions given to the Custodian hereunder concerning such
transactions provided such instructions reasonably appear to have
been received from a duly Authorized Person.
(j) INSPECTION OF BOOKS AND RECORDS. The books and records of the
Custodian shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Trust and by
employees of the Securities and Exchange Commission.
The Custodian shall provide the Trust with any report
obtained by the Custodian on the system of internal accounting
control of the Book-Entry System or the Depository and with such
reports on its own systems of internal accounting control as the
Trust may reasonably request from time to time.
12. TERM AND TERMINATION.
(a) This Agreement shall become effective on the date first set
forth above and shall continue in effect thereafter from year to
year unless termination pursuant to Section 12(b) of this
Agreement.
(b) Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date
of such termination, which shall be not less than 120 days after
the date of receipt of such notice. In the event such notice is
given by the Trust, it shall be accompanied by a certified
resolution of the Board of Trustees of the Trust, electing to
terminate this Agreement and designating a successor custodian or
custodians, which shall be a person qualified to so act under the
1940 Act or undertaking to make such designation at least 30 days
prior to the termination date. In the event such notice is given
by the Custodian, the Trust shall, on or before the termination
date, deliver to the Custodian a certified resolution of the
Board of Trustees of the Trust, designating a successor custodian
or custodians. In the absence of such designation by the Trust,
the Custodian may designate a successor custodian, which shall be
a person qualified to so act under the 0000 Xxx. If the Trust
fails to designate a successor custodian the Trust shall upon the
date specified in the notice of termination of this Agreement and
upon the delivery by the Custodian of all Securities (other than
Securities held in the Book-Entry Systems
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which cannot be delivered to the Trust) and moneys then owned by
the Trust be deemed to be its own custodian and the Custodian
shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement, other than the duty with respect to
Securities held in the Book-Entry System which cannot be
delivered to the Trust.
(c) Upon the date set forth in such notice under paragraph (b) of
this Section 12, this Agreement shall terminate to the extent
specified in such notice, and the Custodian shall upon receipt of
a notice of acceptance by the successor custodian on that date
deliver directly to the successor custodian all Securities and
moneys then held by the Custodian after deducting all fees,
expenses and other amounts for the payment or reimbursement of
which it shall then be entitled and otherwise cooperate in the
transfer of its duties and responsibilities hereunder.
13. MISCELLANEOUS.
(a) Annexed hereto as Appendix A is a certification signed by the
Secretary of the Trust setting forth the names and the signatures
of the present Authorized Persons. The Trust agrees to furnish to
the Custodian a new certification in similar form in the event
that any such present Authorized Person ceases to be such an
Authorized Person or in the event that other or additional
Authorized Persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement upon
Oral Instructions or signatures of the present Authorized Persons
as set forth in the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by the
Secretary of the Trust setting forth the names and the signatures
of the present officers of the Trust. The Trust agrees to furnish
to the Custodian a new certification in similar form in the event
any such present officer ceases to be an officer of the Trust or
in the event that other or additional officers are elected or
appointed. Until such new certification shall be received, the
Custodian shall be fully protected in acting under the provisions
of this Agreement upon the signature of the officers as set forth
in the last delivered certification.
(c) The Custodian shall provide the Trust and/or its investment
manager such reports on securities and cash positions,
transaction fails, aging of receivables and other relevant data
as the Trust or investment manager may reasonably require and
shall reconcile any differences with the records of the Trust's
pricing and bookkeeping agent. The Custodian will also timely
provide the Trust's pricing and bookkeeping
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agent with such information in the Custodian's possession as the
pricing and bookkeeping agent may reasonably require.
(d) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be
sufficiently given if addressed to the Custodian and mailed or
delivered to it at its offices at Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 Attn: Xxxx Xxxxxxxx or at such other place as
the Custodian may from time to time designate in writing.
(e) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Trust, shall be
sufficiently given if addressed to the Trust and mailed or
delivered to it at its offices at Xxx Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attn: Xxx X. Xxxxx, or at such other place as the
Trust may from time to time designate in writing.
(f) This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the
same formality as this Agreement, and as may be permitted or
required by the 0000 Xxx.
(g) This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by
the Trust without the written consent of the Custodian, or by the
Custodian without the written consent of the Trust authorized or
approved by a resolution of the Board of Trustees of the Trust,
and any attempted assignment without such written consent shall
be null and void.
(h) This Agreement shall be construed in accordance with the laws
of the Commonwealth of Massachusetts.
(i) It is expressly agreed to that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of the
Trust, personally, but bind only the trust property of the Trust,
as provided in the Declaration of Trust of the Trust. The
execution and delivery of this Agreement have been authorized by
the Trustees of the Trust and signed by an authorized officer of
the Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them individually or to impose
any liability on any of them personally, but shall bind only the
trust property of the Trust as provided in its Declaration of
Trust.
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(j) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
(k) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunder duly
authorized as of the day and year first above written.
WPG FUND
By: /s/
-------------------------------
BOSTON SAFE DEPOSIT AND TRUST
COMPANY
By: /s/
-------------------------------
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APPENDIX A
I, Xxxx X. Xxxx, Secretary of WPG FUND, a Massachusetts business trust
(the "Trust"), do hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Oral Instructions and Written Instructions on behalf of the
Trust and the signatures set forth opposite their respective names are their
true and correct signatures:
NAME SIGNATURE
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Xxxx X. Xxxx, Secretary
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APPENDIX C
The following individuals are authorized by Boston Safe Deposit and
Trust Company to have access to the assets of WPG Fund:
Xxxxxx X. Xxxxxx
Xxxxx X. XxXxxxx
Xxxxx XxXxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. XxXxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxxxxxx X. Xxxx
Xxxxxxxx Xxxx
S. Xxxxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
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CUSTODY AGREEMENT
FEE SCHEDULE
SCHEDULE A
Xxxxx Xxxx and Xxxxx Funds Trust, WPG Fund, WPG Growth Fund and Tudor
Fund (collectively referred to as the "Trusts") agree to pay to Boston Safe
Deposit and Trust Company the following fees. Such fees to be calculated on the
daily net assets of the combined Trusts.
DOMESTIC SAFEKEEPING FEE:
COMBINED ASSETS ANNUAL FEE RATE
First $50 million .0002
Next $100 million .000175
Next $100 million .000150
Excess .000100
TRANSACTION CHARGES
Fee per non-depository
eligible securities $17.00
Fee per depository
eligible securities $10.00
Fee per mortgage-backed
securities paydown $10.00
Fee per option and futures $17.00
Fee per foreign transaction $27.00
Fee per issue per annum $12.00
Fee per short term security held
in the account for two months or
longer $ 5.00
CREDIT INCOME
Income Collection on Equities and Bonds Interest Income will be
credited in good funds on payable date plus one.
GNMAE will be credited in good funds on the fourth (4th) business day
after payable date. First month principle and interest payment into a new pool
will be credited on a when collected basis.
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Variable Rate Bond Income will be credited upon receipt of good funds.
SPECIAL SERVICES
Fees for activities of a non recurring nature such as portfolio
consolidation or reorganization, extraordinary shipments and the preparation of
special reports will be subject to negotiation.
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CUSTODY AGREEMENT
OUT-OF-POCKET EXPENSES
SCHEDULE B
Reimbursable out-of-pocket expenses will be added to each monthly
invoice and will include, but not limited to, such customary items as telephone,
wire charges ($5.50 per wire) postage, insurance, pricing services, courier
services and duplicating charges.
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