CUSTODY AGREEMENT
AGREEMENT dated as of March 20, 1989 between ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ FUNDS
TRUST (the ATrust@), a Massachusetts business trust, having its principal office
and place of business at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
BOSTON SAFE DEPOSIT AND TRUST COMPANY (the "Custodian@), a Massachusetts trust
company with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 September 11, 1985 as the same may be amended from time to
time.
(e) "Depository" shall mean The Depository Trust Company (ADTC@), 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) "Portfolio" refers to the WPG Dividend Income Fund, WPG Government
Securities Fund, WPG Short Term Income Fund and WPG Tax Free Money
Market Fund or any such other separate and distinct portfolio as may
from time to time be created and designated by the Trust in accordance
with the provisions of the Declaration of Trust.
(i) "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.
(j) "Shares" refers to the shares of beneficial interest of each
Portfolio of the Trust.
(k) "Security" or ASecurities@ shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities and investments from time to time owned by each
Portfolio.
(l) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent
functions for the Trust.
(m) "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.
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(n) The "1940 Act" refers to the Investment Company Act of 1940, and
the Rules and Regulations thereunder, all as amended from time to
time.
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 and specifically allocated to a Portfolio
during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian for
each Portfolio 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 for the
existing Portfolios. Such Fee Schedule does not include out-of-pocket
disbursements of the Custodian for which the Custodian shall be
entitled to ▇▇▇▇ 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) The parties hereto will agree upon the compensation for acting as
custodian for any Portfolio hereafter established and designated, and
at the time that the Custodian commences serving as such for said
Portfolio, such agreement shall be reflected in a Fee Schedule for
that Portfolio, dated and signed by an officer of each party hereto,
which shall be attached to Schedule A of this Agreement.
(c) 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.
(d) The Custodian will ▇▇▇▇ the Trust for each Portfolio as soon as
practicable after the end of each calendar month, and said ▇▇▇▇▇▇▇▇
will be detailed in accordance with the Fee Schedule for each
Portfolio. The Trust will promptly pay to the Custodian the amount of
such billing.
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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 and shall specify the
portfolio to which the Securities and moneys are to be specifically
allocated. 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
Written Instructions, 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 a Portfolio are to be deposited on behalf of such
portfolio in the Book-Entry System or the Depository and specifically
allocated on the books of the Custodian to such Portfolio; provided,
however, that prior to the deposit of Securities of a portfolio 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 each Portfolio and shall credit to the
separate account of each Portfolio all moneys received by it for the
account of such Portfolio and shall disburse the same only:
1. In payment for Securities purchased for such Portfolio, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with respect to the
Shares of such Portfolio, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to
the Shares of such portfolio, as provided in Section 8 hereof;
PAGE 5 WAS MISSING FROM ORIGINAL DOCUMENT
(c)
(d)
(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 a Portfolio in accordance with
this Agreement:
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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 or the
Portfolio for monitoring or ascertaining any call, redemption or
retirement dates with respect to put bonds which are owned by the
Trust or the Portfolio and held by the Custodian or its nominees.
Nor shall the Custodian have any responsibility or liability to
the Fund or the Portfolio for any loss by the Fund or the
Portfolio for any missed payments or other defaults 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 or the
Portfolio and held by the Custodian or its nominee. The Custodian
shall not be responsible and assumes no liability to the Trust or
the Portfolio 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 each Portfolio.
(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 Instructions and confirmed by
Written Instructions 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 Instruction
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 a
Portfolio in exchange for other Securities or cash issued or paid
in connection with the liquidation, reorganization, refinancing,
merger, consolidation
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or recapitalization of any corporation, or the exercise of any
conversion privilege;
3. Deliver or cause to be delivered any Securities held for a
Portfolio 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 each Portfolio such
certificates 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 specifically allocated to the separate account of a
Portfolio and take such other steps as shall be stated in said
Written Instruction 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 any Portfolio upon sale of such
Securities for the account of such Portfolio pursuant to Section
5;
6. Deliver Securities owned by any Portfolio upon the receipt of
payment in connection with any repurchase agreement related to
such Securities entered into by such Portfolio;
7. Deliver Securities owned by any Portfolio 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 or the Portfolio for
monitoring or ascertaining any call, redemption or retirement
dates with respect to the put bonds which are owned by the Trust
or the Portfolio and held by the Custodian or its nominee. Nor
shall the Custodian have any responsibility or liability to the
Trust or the Portfolio for any loss by the Trust or the Portfolio
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 or the Portfolio and held by the
Custodian or its nominee. The Custodian shall not be responsible
and assumes no liability to the Trust or the Portfolio for the
accuracy or completeness of any notification the Custodian may
furnish to the Trust with respect to put bonds;
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8. Deliver Securities owned by any Portfolio for delivery in
connection with any loans of securities made by such Portfolio
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 any Portfolio for delivery as
security in connection with any borrowings by such Portfolio
requiring a pledge of Portfolio assets, but only against receipt
of amounts borrowed;
10. Deliver Securities owned by any Portfolio upon receipt of
instructions from such Portfolio 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
a Portfolio.
5. PURCHASE AND SALE OF INVESTMENTS OF THE PORTFOLIOS.
(a) Promptly after each purchase of Securities for a Portfolio, 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 a Written or Oral Instruction, in either case
specifying with respect to each purchase: (1) the name of the
Portfolio to which such Securities are to be specifically allocated;
(2) the name of the issuer and the title of the Securities; (3) the
number of shares or the principal amount purchased and accrued
interest, if any; (4) the date of purchase and settlement; (5) the
purchase price per unit; (6) the total amount payable upon such
purchase; (7) the name of the person from whom or the broker through
whom the purchase was made, if any; (8) whether or not such purchase
is to be settled through the Book-Entry System or the Depository;
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and (9) 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 a Portfolio and upon receipt of such
Securities shall pay out of the moneys held for the account of such
Portfolio the total amount payable upon such purchase, provided that
the same conforms to the total amount payable as set forth in such
Written nor Oral Instruction.
(b) Promptly after each sale of Securities of a Portfolio, 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 Portfolio to which the Securities sold
were specifically allocated; (2) the name of the issuer and the title
of the Securities; (3) the number of shares or principal amount sold,
and accrued interest, if any; (4) the date of sale; (5) the sale price
per unit; (6) the total amount payable to the Portfolio upon such
sale; (7) the name of the broker through whom or the person to whom
the sale was made; and (8) 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 such Portfolio upon such sale, provided that the same
conforms to the total amount payable to such Portfolio as set forth in
such Written or Oral Instruction. 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 any Portfolio is permitted by the terms of the Declaration of
Trust and as disclosed in its Prospectus to lend Securities
specifically allocated to that Portfolio, 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
Portfolio to which the loaned Securities are specifically allocated;
(2) the name of the issuer and the title of the Securities; (3) the
number of shares or the principal amount loaned; (4) the date of loan
and delivery; (5) the total amount to be delivered to the Custodian,
and specifically allocated to such Portfolio against the loan of the
Securities, including the amount of cash collateral and the premium,
if any, separately identified; (6) the name of the broker, dealer or
financial institution to which the loan was made; and (7) whether the
Securities loaned are to be delivered through the Book-Entry System or
the Depository.
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Promptly after each termination of a loan of Securities
specifically allocated to a Portfolio, 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
Portfolio to which such loaned Securities are specifically allocated;
(2) the name of the issuer and the title of the Securities to be
returned; (3) the number of shares or the principal amount to be
returned; (4) the date of termination; (5) the total amount to be
delivered by the Custodian (including the cash collateral for such
Securities minus any offsetting credits as described in said Written
Instructions); (6) the name of the broker, dealer or financial
institution from which the Securities will be returned; and (7)
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 specifically allocated to such Portfolio, the total amount
payable upon such return of Securities as set forth in such 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 with respect to a Portfolio
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 a Portfolio, 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 appropriate Portfolio the total amount payable
to the Transfer Agent of the Trust.
8. SALE AND REDEMPTION OF SHARES OF THE PORTFOLIOS.
(a) Whenever the Trust shall sell any Shares of a Portfolio, the Trust
shall deliver or cause to be delivered to the Custodian Written
Instruction duly specifying:
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1. The name of the Portfolio whose Shares were sold;
2. The number of Shares sold, trade date, and price; and
3. The amount of money to be received by the Custodian for the
sale of such Shares and specifically allocated to such Portfolio.
(b) Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Portfolio
specified in subparagraph (1) of paragraph (a) of this Section 8.
(c) Upon issuance of any Shares of a Portfolio in accordance with the
foregoing provisions of this Section 8, the Custodian shall pay, out
of the moneys specifically allocated and held for the account of such
Portfolio, all original issue or other taxes required to be paid in
connection with such issuance upon the receipt of a Certificate
specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of a Portfolio
are redeemed, the Trust shall cause the Transfer Agent to promptly
furnish to the Custodian Written Instruction, specifying:
1. The name of the Portfolio whose Shares were redeemed;
2. The number of Shares redeemed; and
3. 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 a Portfolio 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 out
of the moneys specifically allocated to and held for the account of
the Portfolio specified in subparagraph (1) of paragraph (d) of this
Section 8 of 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 a 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
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check presented as part of such check redemption privilege out of the
moneys specifically allocated to the Trust in such advice for such
purpose.
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 Instruction stating with respect to each such borrowing: (1)
the name of the Portfolio for which the borrowing is to be made; (2)
the name of the bank; (3) the amount and terms of the borrowing, which
may be set forth by incorporating by reference an attached promissory
note, duly endorsed by the Trust, or other loan agreement; (4) the
time and date, if known, on which the loan is to be entered into (the
Aborrowing date@); (5) the date on which the loan becomes due and
payable; (6) the total amount payable to the Trust for the separate
account of the Portfolio on the borrowing date; (7) 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; (8) whether the
Custodian is to deliver such collateral through the Book-Entry System
or the Depository; and (9) a statement that such loan is in
conformance with the 1940 Act and the Trust=s Prospectus.
(b) Upon receipt of the 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
specifically allocated to such Portfolio 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 Instruction all of the information
required by this Section 9, the Custodian shall not be under any
obligation to deliver any Securities.
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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 PORTFOLIOS.
(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.
(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.
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(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 any Portfolio, the legality of the purchase
thereof, or the propriety of the amount paid therefor;
2. The legality of the sale of any Securities by any Portfolio,
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;
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 any Portfolio;
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 any Portfolio 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 any Portfolio 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
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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 any
Portfolio, 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 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 17f-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 and specifically allocated to
a Portfolio are such as may properly be held by the Trust and
specifically allocated to such Portfolio 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
specifically allocated to a Portfolio such compensation and any
expenses incurred by the Custodian in the performance of its duties
pursuant to such agreement with respect to such Portfolio. The
Custodian shall also be entitled to charge against any money held by
it and specifically allocated to a Portfolio the amount of any loss,
damage, liability or expense incurred with respect to such Portfolio,
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
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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
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 with
respect to any Portfolio 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 with respect to any Portfolio 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
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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 ▇▇▇▇ ▇▇▇. If the Trust fails to designate a successor custodian
for any Portfolio, 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 which cannot be delivered to the Trust) and moneys
then owned by such Portfolio, 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 and specifically allocated to the Portfolio or Portfolios
specified, after deducting all fees, expenses and other amounts for
the payment or reimbursement of which it shall then be entitled with
respect to such Portfolio or Portfolios 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.
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(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 such pricing and bookkeeping agent.
The Custodian will also timely provide the Trust=s pricing and
bookkeeping 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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇.
▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇.
(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
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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. (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.
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ FUNDS TRUST
BY: /S/
------------------------------
BOSTON SAFE DEPOSIT AND TRUST
COMPANY
BY: /S/
-----------------------------
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APPENDIX A
I, ▇▇▇▇ ▇. ▇▇▇▇, Secretary of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Funds Trust, 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
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
▇▇▇▇ ▇. ▇▇▇▇, 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 ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Funds Trust:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
S. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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CUSTODY AGREEMENT
FEE SCHEDULE
SCHEDULE A
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ 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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