EXHIBIT (g)(1)
CUSTODY AGREEMENT
Custody Agreement, made as of July 25, 1996, between XXXXXXXX
PARTNERS FUNDS, INC. ("CPF"), a corporation organized and existing under the
laws of the State of Maryland, having its principal office and place of business
at 00 Xxxxxxxx Xxxxx, #0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000, on behalf of
XXXXXXXX PARTNERS CAPITAL VALUE FUND, a series thereof, and THE BANK OF NEW
YORK, a New York corporation authorized to do a banking business, having its
principal office and place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter called the "Custodian").
W I T N E S S E T H :
that for and in consideration of the mutual promises hereinafter set forth CPF,
on behalf of the Fund, and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
1. "Authorized Person" shall be deemed to include the
Treasurer, the Controller or any other person, whether or not any such person is
an Officer or employee of CPF, duly authorized by the Directors of CPF to give
Oral Instructions and Written Instructions on behalf of the Fund and listed in
the Certificate annexed hereto as Appendix A or such other Certificate as may be
received by the Custodian from time to time.
2. "Available Balance" shall mean for any given day during a
calendar year the aggregate amount of Federal Funds held in the Fund's custody
account(s) at The Bank of New York, or its successors, as of the close of such
day or, if such day is not a business day, the close of the preceding business
day.
3. "Bankruptcy" shall mean with respect to a party such
party's making a general assignment, arrangement or composition with or for the
benefit of its creditors, or instituting or having instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or the entry of an
order for relief under the Federal bankruptcy law or any other relief under any
bankruptcy or insolvency law or other similar law affecting creditors' rights,
or if a petition is presented for the winding up or liquidation of the party or
a resolution is passed for its winding up or liquidation, or it seeks, or
becomes subject to, the appointment of an administrator, receiver, trustee,
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custodian or other similar official for it or for all or substantially all of
its assets or its taking any action in furtherance of, or indicating its consent
to approval of, or acquiescence in, any of the foregoing.
4. "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.
5. "Call Option" shall mean an exchange traded option with
respect to Securities other than Stock Index Options, Futures Contracts and
Futures Contract Options entitling the holder, upon timely exercise and payment
of the exercise price, as specified therein, to purchase from the writer thereof
the specified underlying Securities.
6. "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 and
delivered on behalf of the Fund by any two Officers of CPF.
7. "Clearing Member" shall mean a registered broker-dealer
which is a clearing member under the rules of O.C.C. and a member of a national
securities exchange qualified to act as a custodian for an investment company,
or any broker-dealer reasonably believed by the Custodian to be such a clearing
member.
8. "Collateral Account" shall mean a segregated account so
denominated and pledged to the Custodian as security for, and in consideration
of, the Custodian's issuance of (a) any Put Option guarantee letter or similar
document described in paragraph 8 of Article V herein, or (b) any receipt
described in Article V or VIII herein.
9. "Consumer Price Index" shall mean the U.S. Consumer Price
Index, all items and all urban consumers, U.S. city average 1982-84 equals 100,
as first published without seasonal adjustment by the Bureau of Labor
Statistics, the Department of Labor, without regard to subsequent revisions or
corrections by such Bureau.
10. "Covered Call Option" shall mean an exchange traded option
entitling the holder, upon timely exercise and payment of the exercise price, as
specified therein, to purchase from the writer thereof the specified Securities
(excluding Futures Contracts) which are owned by the writer thereof and subject
to appropriate restrictions.
11. "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and Exchange
Commission, its successor or successors and its nominee or nominees, provided
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the Custodian has received a certified copy of a resolution of CPF's Directors
specifically approving deposits in DTC. The term "Depository" shall further mean
and include any other person authorized to act as a depository under the
Investment Company Act of 1940, its successor or successors and its nominee or
nominees, specifically identified in a certified copy of a resolution of CPF's
Directors specifically approving deposits therein by the Custodian.
12. "Earnings Credit" shall mean for any given day during a
calendar year the product of (a) the Federal Funds Rate for such date minus
.25%, and (b) 100% of the Available Balance (less deposit reserve requirements
and F.D.I.C. insurance).
13. "Federal Funds" shall mean immediately available same day
funds.
14. "Federal Funds Rate" shall mean, for any day, the Federal
Funds (Effective) interest rate so denominated as published in Federal Reserve
Statistical Release H.15 (519) and applicable to such day and each succeeding
day which is not a business day.
15. "Financial Futures Contract" shall mean the firm
commitment to buy or sell fixed income securities, including, without
limitation, U.S. Treasury Bills, U.S. Treasury Notes, U.S. Treasury Bonds,
domestic bank certificates of deposit, and Eurodollar certificates of deposit,
during a specified month at an agreed upon price.
16. "Fund" shall mean Xxxxxxxx Partners Capital Value Fund, a
series of CPF. As the context requires, "Fund" means CPF, acting on behalf of
the Fund.
17. "Futures Contract" shall mean a Financial Futures Contract
and/or Stock Index Futures Contracts.
18. "Futures Contract Option" shall mean an option with
respect to a Futures Contract.
19. "Margin Account" shall mean a segregated account in the
name of a broker, dealer, futures commission merchant or Clearing Member, or in
the name of the Fund for the benefit of a broker, dealer, futures commission
merchant or Clearing Member, or otherwise, in accordance with an agreement
between CPF, on behalf of the Fund, the Custodian and a broker, dealer, futures
commission merchant or Clearing Member (a "Margin Account Agreement"), separate
and distinct from the custody account, in which certain Securities and/or money
of the Fund shall be deposited and withdrawn from time to time in connection
with such transactions as the Fund may from time to time determine. Securities
held in the Book-Entry System or the Depository shall be deemed to have been
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deposited in, or withdrawn from, a Margin Account upon the Custodian's effecting
an appropriate entry on its books and records.
20. "Merger" shall mean (a) with respect to the Fund,
the consolidation or amalgamation with, merger into, or transfer of all or
substantially all of its assets to, another entity, where the Fund is not the
surviving entity, and (b) with respect to the Custodian, any consolidation or
amalgamation with, merger into, or transfer of all or substantially all of its
assets to, another entity, except for any such consolidation, amalgamation,
merger or transfer of assets between the Custodian and The Bank of New York
Company, Inc. or any subsidiary thereof, or the Irving Bank Corporation or any
subsidiary thereof, provided that the surviving entity agrees to be bound by the
terms of this Agreement.
21. "Money Market Security" shall be deemed to include,
without limitation, debt obligations issued or guaranteed as to principal and
interest by the government of the United States or agencies or instrumentalities
thereof, commercial paper, certificates of deposit and bankers' acceptances,
repurchase and reverse repurchase agreements with respect to the same and bank
time deposits, where the purchase and sale of such securities normally requires
settlement in Federal funds on the same date as such purchase or sale.
22. "O.C.C." shall mean Options Clearing Corporation, a
clearing agency registered under Section 17A of the Securities Exchange Act of
1934, its successor or successors, and its nominee or nominees.
23. "Officers" shall be deemed to include the President, any
Vice President, the Secretary, the Treasurer, the Controller, any Assistant
Secretary, any Assistant Treasurer or any other person or persons duly
authorized by the Directors of CPF to execute any Certificate, instruction,
notice or other instrument on behalf of the Fund and listed in the Certificate
annexed hereto as Appendix B or such other Certificate as may be received by the
Custodian from time to time.
24. "Option" shall mean a Call Option, Covered Call Option,
Stock Index Option and/or a Put Option.
25. "Oral Instructions" shall mean verbal instructions
actually received by the Custodian from an Authorized Person or from a person
reasonably believed by the Custodian to be an Authorized Person.
26. "Put Option" shall mean an exchange traded option with
respect to Securities other than Stock Index Options, Futures Contracts, and
Futures Contract Options entitling the holder, upon timely exercise and tender
of the specified underlying Securities, to sell such Securities to the writer
thereof for the exercise price.
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27. "Reverse Repurchase Agreement" shall mean an agreement
pursuant to which the Fund sells Securities and agrees to repurchase such
Securities at a described or specified date and price.
28. "Security" shall be deemed to include, without limitation,
Money Market Securities, Call Options, Put Options, Stock Index Options, Stock
Index Futures Contracts, Stock Index Futures Contract Options, Financial Futures
Contracts, Financial Futures Contract Options, Reverse Repurchase Agreements,
common stock and other instruments or rights having characteristics similar to
common stocks, preferred stocks, debt obligations issued by state or municipal
governments and by public authorities (including, without limitation, general
obligation bonds, revenue bonds and industrial bonds and industrial development
bonds), bonds, debentures, notes, mortgages or other obligations, and any
certificates, receipts, warrants or other instruments representing rights to
receive, purchase, sell or subscribe for the same, or evidencing or representing
any other rights or interest therein, or any property or assets.
29. "Segregated Security Account" shall mean an account
maintained under the terms of this Agreement as a segregated account, by
recordation or otherwise, within the custody account in which certain Securities
and/or other assets of the Fund shall be deposited and withdrawn from time to
time in accordance with Certificates received by the Custodian in connection
with such transactions as the Fund may from time to time determine.
30. "Shares" shall mean the shares of each class of Common
Stock of the Fund.
31. "Stock Index Futures Contract" shall mean a bilateral
agreement pursuant to which the parties agree to take or make delivery of an
amount of cash equal to a specified dollar amount times the difference between
the value of a particular stock index at the close of the last business day of
the contract and the price at which the futures contract is originally struck.
32. "Stock Index Option" shall mean an exchange traded option
entitling the holder, upon timely exercise, to receive an amount of cash
determined by reference to the difference between the exercise price and the
value of the index on the date of exercise.
33. "Written Instructions" shall mean written communications
actually received by the Custodian from an Authorized Person or from a person
reasonably believed by the Custodian to be an Authorized Person by telex or any
other such system whereby the receiver of such communications is able to verify
by codes or otherwise with a reasonable degree of certainty the authenticity of
the sender of such communication.
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ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Fund, hereby constitutes and appoints the Custodian as
custodian of all the Securities and moneys at any time owned by the Fund during
the period of this Agreement, except that (a) if the Custodian fails to provide
for the custody of any of the Fund's Securities and moneys located or to be
located outside the United States in a manner satisfactory to the Fund, the Fund
shall be permitted to arrange for the custody of such Securities and moneys
located or to be located outside the United States other than through the
Custodian at rates to be negotiated and borne by the Fund and (b) if the
Custodian fails to continue any existing sub-custodial or similar arrangements
on substantially the same terms as exist on the date of this Agreement, the Fund
shall be permitted to arrange for such or similar services other than through
the Custodian at rates to be negotiated and borne by CPF, on behalf of the Fund.
The Custodian shall not charge the Fund for any such terminated services after
the date of such termination.
2. The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
1. Except as otherwise provided in paragraph 7 of this Article
and in Article VIII, the Fund will deliver or cause to be delivered to the
Custodian all Securities and all moneys owned by it, including cash received for
the issuance of its shares, at any time during the period of this Agreement. The
Custodian will not be responsible for such Securities and such moneys until
actually received by it. The Custodian will be entitled to reverse any credits
made on the Fund's behalf where such credits have been previously made and
moneys are not finally collected. The Fund shall deliver to the Custodian a
certified resolution of the Directors of CPF approving, authorizing and
instructing the Custodian on a continuous and on-going basis to deposit in the
Book-Entry System all Securities eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with its performance
hereunder, including, without limitation, in connection with settlements of
purchases and sales of Securities, loans of Securities, and deliveries and
returns of Securities collateral. Prior to a deposit of Securities of the Fund
in the Depository the Fund shall deliver to the Custodian a certified resolution
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of the Directors of CPF approving, authorizing and instructing the Custodian on
a continuous and ongoing basis until instructed to the contrary by a Certificate
actually received by the Custodian to deposit in the Depository all Securities
eligible for deposit therein and to utilize the Depository to the extent
possible in connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and sales of Securities,
loans of Securities, and deliveries and returns of Securities collateral.
Securities and moneys of the Fund deposited in either the Book-Entry System or
the Depository will be represented in accounts which include only assets held by
the Custodian for customers, including, but not limited to, accounts in which
the Custodian acts in a fiduciary or representative capacity. Prior to the
Custodian's accepting, utilizing and acting with respect to Clearing Member
confirmations for Options and transactions in Options as provided in this
Agreement, the Custodian shall have received a certified resolution of CPF's
Board of Directors approving, authorizing and instructing the Custodian on a
continuous and on-going basis, until instructed to the contrary by a Certificate
actually received by the Custodian, to accept, utilize and act in accordance
with such confirmations as provided in this Agreement.
2. The Custodian shall credit to a separate account in the
name of the Fund all moneys received by it for the account of the Fund, and
shall disburse the same only:
(a) In payment for Securities purchased, as provided in
Article IV hereof;
(b) In payment of dividends or distributions, as provided in
Article XI hereof;
(c) In payment of original issue or other taxes, as provided
in Article XII hereof;
(d) In payment for Shares redeemed by it, as provided in
Article XII hereof;
(e) Pursuant to Certificates setting forth the name and
address of the person to whom the payment is to be made, and the purpose for
which payment is to be made; or
(f) In payment of the fees and in reimbursement of the
expenses and liabilities of the Custodian, as provided in Article XV hereof.
3. Promptly after the close of business on each day, the
Custodian shall furnish the Fund with confirmations and a summary of all
transfers to or from the account of the Fund during said day. Where Securities
are transferred to the account of the Fund, the Custodian shall also by
book-entry or otherwise identify as belonging to the Fund a quantity of
Securities 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
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the Book-Entry System or the Depository. At least monthly and from time to time,
the Custodian shall furnish the Fund with a detailed statement of the Securities
and moneys held for the Fund under this Agreement.
4. Except as otherwise provided in paragraph 7 of this Article
and in Article VIII, all Securities held for the Fund, 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 Fund may be registered in the name of the Fund, 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
Fund 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 Fund and
which may from time to time be registered in the name of the Fund. The Custodian
shall hold all such Securities which are not held in the Book-Entry System or in
the Depository in a separate account in the name of the Fund physically
segregated at all times from those of any other person or persons.
5. Except as otherwise provided in this Agreement and 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
Fund in accordance with this Agreement:
(a) Collect all income due or payable and, in any event, if
the Custodian receives a written notice from the Fund specifying that an amount
of income should have been received by the Custodian within the last 90 days,
the Custodian will provide a conditional payment of income within 60 days from
the date the Custodian received such notice, unless the Custodian reasonably
concludes that such income was not due or payable to the Fund, provided that the
Custodian may reverse any such conditional payment upon its reasonably
concluding that all or any portion of such income was not due or payable, and
provided further that the Custodian shall not be liable for failing to collect
on a timely basis the full amount of income due or payable in respect of a
"floating rate instrument" or "variable rate instrument" (as such terms are
defined under Rule 2a-7 under the Investment Company Act of 1940, as amended) if
it has acted in good faith, without negligence or willful misconduct.
(b) Present for payment and collect the amount payable upon
such Securities which are called, but only if either (i) the Custodian receives
a written notice of such call, or (ii) notice of such call appears in one or
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more of the publications listed in Appendix C annexed hereto, which may be
amended at any time by the Custodian upon five business days' prior notification
to the Fund;
(c) Present for payment and collect the amount payable upon
all Securities which may mature;
(d) Surrender Securities in temporary form for definitive
Securities;
(e) Execute, as Custodian, 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
(f) Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the account of the
Fund all rights and similar securities issued with respect to any Securities
held by the Custodian hereunder.
6. Upon receipt of a Certificate and not otherwise, the
Custodian, directly or through the use of the Book-Entry System or the
Depository, shall:
(a) Execute and deliver to such persons as may be designated
in such Certificate proxies, consents, authorizations, and any other instruments
whereby the authority of the Fund as owner of any Securities may be exercised;
(b) Deliver any Securities held for the Fund 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;
(c) Deliver any Securities held for the Fund to any protective
committee, reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization or sale of
assets of any corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(d) Make such transfers or exchanges of the assets of the Fund
and take such other steps as shall be stated in said order to be for the purpose
of effectuating any duly authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund; and
(e) Present for payment and collect the amount payable upon
Securities not described in preceding paragraph 5(b) of this Article which may
be called as specified in the Certificate.
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7. Notwithstanding any provision elsewhere contained herein,
the Custodian shall not be required to obtain possession of any instrument or
certificate representing any Futures Contract, Option or Futures Contract Option
until after it shall have determined, or shall have received a Certificate from
CPF, stating that any such instruments or certificates are available. CPF shall
deliver to the Custodian such a Certificate no later than the business day
preceding the availability of any such instrument or certificate. Prior to such
availability, the Custodian shall comply with Section 17(f) of the Investment
Company Act of 1940, as amended, in connection with the purchase, sale,
settlement, closing out or writing of Futures Contracts, Options or Futures
Contract Options by making payments or deliveries specified in Certificates
received by the Custodian in connection with any such purchase, sale, writing,
settlement or closing out upon its receipt from a broker, dealer or futures
commission merchant of a statement or confirmation reasonably believed by the
Custodian to be in the form customarily used by brokers, dealers, or futures
commission merchants with respect to such Futures Contracts, Options or Futures
Contract Options, as the case may be, confirming that such Security is held by
such broker, dealer or futures commission merchant, in book-entry form or
otherwise, in the name of the Custodian (or any nominee of the Custodian) as
custodian for the Fund, provided, however, that payments to or deliveries from
the Margin Account shall be made in accordance with the terms and conditions of
the Margin Account Agreement. Whenever any such instruments or certificates are
available, the Custodian shall, notwithstanding any provision in this Agreement
to the contrary, make payment for any Futures Contract, Option or Futures
Contract Option for which such instruments or such certificates are available
only against the delivery to the Custodian of such instrument or such
certificate, and deliver any Futures Contract, Option or Futures Contract Option
for which such instruments or such certificates are available only against
receipt by the Custodian of payment therefor. Any such instrument or certificate
delivered to the Custodian shall be held by the Custodian hereunder in
accordance with, and subject to, the provisions of this Agreement.
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ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND OTHER THAN OPTIONS,
FUTURES CONTRACTS, FUTURES CONTRACT OPTIONS AND REVERSE
REPURCHASE AGREEMENTS
1. Promptly after each purchase of Securities by the Fund,
other than a purchase of any Option, Futures Contract, Futures Contract Option
or Reverse Repurchase Agreement, CPF shall deliver to the Custodian (i) with
respect to each purchase of Securities which are not Money Market Securities, a
Certificate, and (ii) with respect to each purchase of Money Market Securities,
a Certificate, Oral Instructions or Written Instructions, specifying with
respect to each such purchase: (a) the name of the issuer and the title of the
Securities; (b) the number of shares or the principal amount purchased and
accrued interest, if any; (c) the date of purchase and settlement; (d) the
purchase price per unit; (e) the total amount payable upon such purchase; (f)
the name of the person from whom or the broker through whom the purchase was
made, and the name of the clearing broker, if any; and (g) the name of the
broker to which payment is to be made. The Custodian shall, upon receipt of
Securities purchased by or for the Fund, pay out of the moneys held for the
account of the Fund the total amount payable to the person from whom, or the
broker through whom, the purchase was made, provided that the same conforms to
the total amount payable as set forth in such Certificate, Oral Instructions or
Written Instructions.
2. Promptly after each sale of Securities by the Fund, other
than a sale of any Option, Futures Contract, Futures Contract Option or Reverse
Repurchase Agreement, CPF shall deliver to the Custodian (i) with respect to
each sale of Securities which are not Money Market Securities, a Certificate,
and (ii) with respect to each sale of Money Market Securities, a Certificate,
Oral Instructions or Written Instructions, specifying with respect to each such
sale: (a) the name of the issuer and the title of the Security; (b) the number
of shares or principal amount sold, and accrued interest, if any; (c) the date
of sale; (d) the sale price per unit; (e) the total amount payable to the Fund
upon such sale; (f) the name of the broker through whom or the person to whom
the sale was made, and the name of the clearing broker, if any; and (g) the name
of the broker to whom the Securities are to be delivered. The Custodian shall
deliver the Securities upon receipt of the total amount payable to the Fund upon
such sale, provided that the same conforms to the total amount payable as set
forth in such Certificate, Oral Instructions or Written 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.
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ARTICLE V
OPTIONS
1. Promptly after the purchase of any Option by the Fund, CPF
shall deliver to the Custodian a Certificate specifying with respect to each
Option purchased: (a) the type of Option (put or call); (b) the name of the
issuer and the title and number of shares subject to such Option or, in the case
of a Stock Index Option, the stock index to which such Option relates and the
number of Stock Index Options purchased; (c) the expiration date; (d) the
exercise price; (e) the dates of purchase and settlement; (f) the total amount
payable by the Fund in connection with such purchase; (g) the name of the
Clearing Member through which such Option was purchased; and (h) the name of the
broker to whom payment is to be made. The Custodian shall pay, upon receipt of a
Clearing Member's statement confirming the purchase of such Option held by such
Clearing Member for the account of the Custodian (or any duly appointed and
registered nominee of the Custodian) as custodian for the Fund, out of moneys
held for the account of the Fund, the total amount payable upon such purchase to
the Clearing Member through whom the purchase was made, provided that the same
conforms to the total amount payable as set forth in such Certificate.
2. Promptly after the sale of any Option purchased by the Fund
pursuant to paragraph l hereof, CPF shall deliver to the Custodian a Certificate
specifying with respect to each such sale: (a) the type of Option (put or call);
(b) the name of the issuer and the title and number of shares subject to such
Option or, in the case of a Stock Index Option, the stock index to which such
Option relates and the number of Stock Index Options sold; (c) the date of sale;
(d) the sale price; (e) the date of settlement; (f) the total amount payable to
the Fund upon such sale; and (g) the name of the Clearing Member through which
the sale was made. The Custodian shall consent to the delivery of the Option
sold by the Clearing Member which previously supplied the confirmation described
in preceding paragraph l of this Article with respect to such Option against
payment to the Custodian of the total amount payable to the Fund, provided that
the same conforms to the total amount payable as set forth in such Certificate.
3. Promptly after the exercise by the Fund of any Call Option
purchased by the Fund pursuant to paragraph 1 hereof, CPF shall deliver to the
Custodian a Certificate specifying with respect to such Call Option: (a) the
name of the issuer and the title and number of shares subject to the Call
Option; (b) the expiration date; (c) the date of exercise and settlement; (d)
the exercise price per share; (e) the total amount to be paid by the Fund upon
such exercise; and (f) the name of the Clearing Member through which such Call
Option was exercised. The Custodian shall, upon receipt of the Securities
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underlying the Call Option which was exercised, pay out of the moneys held for
the account of the Fund the total amount payable to the Clearing Member through
whom the Call Option was exercised, provided that the same conforms to the total
amount payable as set forth in such Certificate.
4. Promptly after the exercise by the Fund of any Put Option
purchased by the Fund pursuant to paragraph 1 hereof, CPF shall deliver to the
Custodian a Certificate specifying with respect to such Put Option: (a) the name
of the issuer and the title and number of shares subject to the Put Option; (b)
the expiration date; (c) the date of exercise and settlement; (d) the exercise
price per share; (e) the total amount to be paid to the Fund upon such exercise;
and (f) the name of the Clearing Member through which such Put Option was
exercised. The Custodian shall, upon receipt of the amount payable upon the
exercise of the Put Option, deliver or direct the Depository to deliver the
Securities, provided the same conforms to the amount payable to the Fund as set
forth in such Certificate.
5. Promptly after the exercise by the Fund of any Stock Index
Option purchased by the Fund pursuant to paragraph 1 hereof, CPF shall deliver
to the Custodian a Certificate specifying with respect to such Stock Index
Option: (a) the type of Stock Index Option (put or call); (b) the number of
Options being exercised; (c) the stock index to which such Option relates; (d)
the expiration date; (e) the exercise price (f) the total amount to be received
by the Fund in connection with such exercise; and (g) the Clearing Member from
which such payment is to be received.
6. Whenever the Fund writes a Covered Call Option, CPF shall
promptly deliver to the Custodian a Certificate specifying with respect to such
Covered Call Option: (a) the name of the issuer and the title and number of
shares for which the Covered Call Option was written and which underlie the
same; (b) the expiration date; (c) the exercise price; (d) the premium to be
received by the Fund; (e) the date such Covered Call Option was written; and (f)
the name of the Clearing Member through which the premium is to be received. The
Custodian shall deliver or cause to be delivered, in exchange for receipt of the
premium specified in the Certificate with respect to such Covered Call Option,
such receipts as are required in accordance with the customs prevailing among
Clearing Members dealing in Covered Call Options and shall impose, or direct the
Depository to impose, upon the underlying Securities specified in the
Certificate such restrictions as may be required by such receipts.
Notwithstanding the foregoing, the Custodian has the right, upon prior written
notification to the Fund, at any time to refuse to issue any receipts for
Securities in the possession of the Custodian and not deposited with the
Depository underlying a Covered Call Option.
13
7. Whenever a Covered Call Option written by the Fund and
described in the preceding paragraph of this Article is exercised, CPF shall
promptly deliver to the Custodian a Certificate instructing the Custodian to
deliver, or to direct the Depository to deliver, the Securities subject to such
Covered Call Option and specifying: (a) the name of the issuer and the title and
number of shares subject to the Covered Call Option; (b) the Clearing Member to
whom the underlying Securities are to be delivered; and (c) the total amount
payable to the Fund upon such delivery. Upon the return and/or cancellation of
any receipts delivered pursuant to paragraph 6 of this Article, the Custodian
shall deliver, or direct the Depository to deliver, the underlying Securities as
specified in the Certificate for the amount to be received as set forth in such
Certificate.
8. Whenever the Fund writes a Put Option, CPF shall promptly
deliver to the Custodian a Certificate specifying with respect to such Put
Option: (a) the name of the issuer and the title and number of shares for which
the Put Option is written and which underlie the same; (b) the expiration date;
(c) the exercise price; (d) the premium to be received by the Fund; (e) the date
such Put Option is written; (f) the name of the Clearing Member through which
the premium is to be received and to whom a Put Option guarantee letter is to be
delivered; (g) the amount of cash, and/or the amount and kind of Securities, if
any, to be deposited in the Segregated Security Account; and (h) the amount of
cash and/or the amount and kind of Securities to be deposited into the
Collateral Account. The Custodian shall, after making the deposits into the
Collateral Account specified in the Certificate, issue a Put Option guarantee
letter substantially in the form utilized by the Custodian on the date hereof,
and deliver the same to the Clearing Member specified in the Certificate against
receipt of the premium specified in said Certificate. Notwithstanding the
foregoing, the Custodian shall be under no obligation to issue any Put Option
guarantee letter or similar document if it is unable to make any of the
representations contained therein.
9. Whenever a Put Option written by the Fund and described in
the preceding paragraph is exercised, CPF shall promptly deliver to the
Custodian a Certificate specifying: (a) the name of the issuer and title and
number of shares subject to the Put Option; (b) the Clearing Member from which
the underlying Securities are to be received; (c) the total amount payable by
the Fund upon such delivery; (d) the amount of cash and/or the amount and kind
of Securities to be withdrawn from the Collateral Account; and (e) the amount of
cash and/or the amount and kind of Securities, if any, to be withdrawn from the
Segregated Security Account. Upon the return and/or cancellation of any Put
Option guarantee letter or similar document issued by the Custodian in
connection with such Put Option, the Custodian shall pay out of the moneys held
14
for the account of the Fund the total amount payable to the Clearing Member
specified in the Certificate as set forth in such Certificate, and shall make
the withdrawals specified in such Certificate.
10. Whenever the Fund writes a Stock Index Option, CPF shall
promptly deliver to the Custodian a Certificate specifying with respect to such
Stock Index Option: (a) whether such Stock Index Option is a put or a call; (b)
the number of Options written; (c) the stock index to which such Option relates;
(d) the expiration date; (e) the exercise price; (f) the Clearing Member through
which such Option was written; (g) the premium to be received by the Fund; (h)
the amount of cash and/or the amount and kind of Securities, if any, to be
deposited in the Segregated Security Account; (i) the amount of cash and/or the
amount and kind of Securities, if any, to be deposited in the Collateral
Account; and (j) the amount of cash and/or the amount and kind of Securities, if
any, to be deposited in a Margin Account, and the name in which such account is
to be or has been established. The Custodian shall, upon receipt of the premium
specified in the Certificate, make the deposits, if any, into the Segregated
Security Account specified in the Certificate, and either (1) deliver such
receipts, if any, which the Custodian has specifically agreed to issue, which
are in accordance with the customs prevailing among Clearing Members in Stock
Index Options and make the deposits into the Collateral Account specified in the
Certificate, or (2) make the deposits into the Margin Account specified in the
Certificate.
11. Whenever a Stock Index Option written by the Fund and
described in the preceding paragraph of this Article is exercised, CPF shall
promptly deliver to the Custodian a Certificate specifying with respect to such
Stock Index Option: (a) such information as may be necessary to identify the
Stock Index Option being exercised; (b) the Clearing Member through which such
Stock Index Option is being exercised; (c) the total amount payable upon such
exercise, and whether such amount is to be paid by or to the Fund; (d) the
amount of cash and/or amount and kind of Securities, if any, to be withdrawn
from the Margin Account; and (e) the amount of cash and/or amount and kind of
Securities, if any, to be withdrawn from the Segregated Security Account and the
amount of cash and/or the amount and kind of Securities, if any, to be withdrawn
from the Collateral Account. Upon the return and/or cancellation of the receipt,
if any, delivered pursuant to the preceding paragraph of this Article, the
Custodian shall pay to the Clearing Member specified in the Certificate the
total amount payable, if any, as specified therein.
12. Whenever the Fund purchases any Option identical to a
previously written Option described in paragraphs 6, 8 or 10 of this Article in
a transaction expressly designated as a "Closing Purchase Transaction" in order
to liquidate its position as a writer of an Option, CPF shall promptly deliver
15
to the Custodian a Certificate specifying with respect to the Option being
purchased: (a) that the transaction is a Closing Purchase Transaction; (b) the
name of the issuer and the title and number of shares subject to the Option, or,
in the case of a Stock Index Option, the stock index to which such Option
relates and the number of Options held; (c) the exercise price; (d) the premium
to be paid by the Fund; (e) the expiration date; (f) the type of Option (put or
call); (g) the date of such purchase; (h) the name of the Clearing Member to
which the premium is to be paid; and (i) the amount of cash and/or the amount
and kind of Securities, if any, to be withdrawn from the Collateral Account, a
specified Margin Account or the Segregated Security Account. Upon the
Custodian's payment of the premium and the return and/or cancellation of any
receipt issued pursuant to paragraphs 6, 8 or 10 of this Article with respect to
the Option being liquidated through the Closing Purchase Transaction, the
Custodian shall remove, or direct the Depository to remove, the previously
imposed restrictions on the Securities underlying the Call Option.
13. Upon the expiration or exercise of, or consummation of a
Closing Purchase Transaction with respect to, any Option purchased or written by
the Fund and described in this Article, the Custodian shall delete such Option
from the statements delivered to the Fund pursuant to paragraph 3 of Article III
herein, and upon the return and/or cancellation of any receipts issued by the
Custodian, shall make such withdrawals from the Collateral Account, the Margin
Account and/or the Segregated Security Account as may be specified in a
Certificate received in connection with such expiration, exercise, or
consummation.
16
ARTICLE VI
FUTURES CONTRACTS
1. Whenever the Fund shall enter into a Futures Contract, CPF
shall deliver to the Custodian a Certificate specifying with respect to such
Futures Contract (or with respect to any number of identical Futures
Contract(s)): (a) the category of Futures Contract (the name of the underlying
stock index or financial instrument); (b) the number of identical Futures
Contracts entered into; (c) the delivery or settlement date of the Futures
Contract(s); (d) the date the Futures Contract(s) was (were) entered into and
the maturity date; (e) whether the Fund is buying (going long) or selling (going
short) on such Futures Contract(s); (f) the amount of cash and/or the amount and
kind of Securities, if any, to be deposited in the Segregated Security Account;
(g) the name of the broker, dealer or futures commission merchant through which
the Futures Contract was entered into; and (h) the amount of fee or commission,
if any, to be paid and the name of the broker, dealer or futures commission
merchant to whom such amount is to be paid. The Custodian shall make the
deposits, if any, to the Margin Account in accordance with the terms and
conditions of the Margin Account Agreement. The Custodian shall make payment of
the fee or commission, if any, specified in the Certificate and deposit in the
Segregated Security Account the amount of cash and/or the amount and kind of
Securities specified in said Certificate.
2. (a) Any variation margin payment or similar payment
required to be made by the Fund to a broker, dealer or futures commission
merchant with respect to an outstanding Futures Contract shall be made by the
Custodian in accordance with the terms and conditions of the Margin Account
Agreement.
(b) Any variation margin payment or similar payment from a
broker, dealer or futures commission merchant to the Fund with respect to an
outstanding Futures Contract shall be received and dealt with by the custodian
in accordance with the terms and conditions of the Margin Account Agreement.
3. Whenever a Futures Contract held by the Custodian hereunder
is retained by the Fund until delivery or settlement is made on such Futures
Contract, CPF shall deliver to the Custodian a Certificate specifying: (a) the
Futures Contract; (b) with respect to a Stock Index Futures Contract, the total
cash settlement amount to be paid or received, and with respect to a Financial
Futures Contract, the Securities and/or amount of cash to be delivered or
received; (c) the broker, dealer or futures commission merchant to or from which
payment or delivery is to be made or received; and (d) the amount of cash and/or
Securities to be withdrawn from the Segregated Security Account. The Custodian
shall make the payment or delivery specified in the Certificate and delete such
17
Futures Contract from the statements delivered to the Fund pursuant to paragraph
3 of Article III herein.
4. Whenever the Fund shall enter into a Futures Contract to
offset a Futures Contract held by the Custodian hereunder, CPF shall deliver to
the Custodian a Certificate specifying: (a) the items of information required in
a Certificate described in paragraph 1 of this Article, and (b) the Futures
Contract being offset. The Custodian shall make payment of the fee or
commission, if any, specified in the Certificate and delete the Futures Contract
being offset from the statements delivered to the Fund pursuant to paragraph 3
of Article III herein, and make such withdrawals from the Segregated Security
Account as may be specified in such Certificate. The withdrawals, if any, to be
made from the Margin Account shall be made by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
ARTICLE VII
FUTURES CONTRACT OPTIONS
1. Promptly after the purchase of any Futures Contract Option
by the Fund, CPF shall deliver to the Custodian a Certificate specifying with
respect to such Futures Contract Option: (a) the type of Futures Contract Option
(put or call); (b) the type of Futures Contract and such other information as
may be necessary to identify the Futures Contract underlying the Futures
Contract Option purchased; (c) the expiration date; (d) the exercise price; (e)
the dates of purchase and settlement; (f) the amount of premium to be paid by
the Fund upon such purchase; (g) the name of the broker or futures commission
merchant through which such option was purchased; and (h) the name of the broker
or futures commission merchant to whom payment is to be made. The Custodian
shall pay the total amount to be paid upon such purchase to the broker or
futures commission merchant through whom the purchase was made, provided that
the same conforms to the amount set forth in such Certificate.
2. Promptly after the sale of any Futures Contract Option
purchased by the Fund pursuant to paragraph 1 hereof, CPF shall promptly deliver
to the Custodian a Certificate specifying with respect to each such sale: (a)
the type of Futures Contract Option (put or call); (b) the type of Futures
Contract and such other information as may be necessary to identify the Futures
Contract underlying the Futures Contract Option; (c) the date of sale; (d) the
sale price; (e) the date of settlement; (f) the total amount payable to the Fund
upon such sale; and (g) the name of the broker or futures commission merchant
through which the sale was made. The Custodian shall consent to the cancellation
of the Futures Contract Option being closed against payment to the Custodian of
18
the total amount payable to the Fund, provided the same conforms to the total
amount payable as set forth in such Certificate.
3. Whenever a Futures Contract Option purchased by the Fund
pursuant to paragraph 1 is exercised by the Fund, CPF shall promptly deliver to
the Custodian a Certificate specifying: (a) the particular Futures Contract
Option (put or call) being exercised; (b) the type of Futures Contract
underlying the Futures Contract Option; (c) the date of exercise; (d) the name
of the broker or futures commission merchant through which the Futures Contract
Option is exercised; (e) the net total amount, if any, payable by the Fund; (f)
the amount, if any, to be received by the Fund; and (g) the amount of cash
and/or the amount and kind of Securities to be deposited in the Segregated
Security Account. The Custodian shall make the payments, if any, and the
deposits, if any, into the Segregated Security Account as specified in the
Certificate. The deposits, if any, to be made to the Margin Account shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
4. Whenever the Fund writes a Futures Contract Option, CPF
shall promptly deliver to the Custodian a Certificate specifying with respect to
such Futures Contract Option: (a) the type of Futures Contract Option (put or
call); (b) the type of Futures Contract and such other information as may be
necessary to identify the Futures Contract underlying the Futures Contract
Option; (c) the expiration date; (d) the exercise price; (e) the premium to be
received by the Fund; (f) the name of the broker or futures commission merchant
through which the premium is to be received; and (g) the amount of cash and/or
the amount and kind of Securities, if any, to be deposited in the Segregated
Security Account. The Custodian shall, upon receipt of the premium specified in
the Certificate, make the deposits into the Segregated Security Account, if any,
as specified in the Certificate. The deposits, if any, to be made to the Margin
Account shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
5. Whenever a Futures Contract Option written by the Fund
which is a call is exercised, CPF shall promptly deliver to the Custodian a
Certificate specifying: (a) the particular Futures Contract Option exercised;
(b) the type of Futures Contract underlying the Futures Contract Option; (c) the
name of the broker or futures commission merchant through which such Futures
Contract Option was exercised; (d) the net total amount, if any, payable to the
Fund upon such exercise; (e) the net total amount, if any, payable by the Fund
upon such exercise; and (f) the amount of cash and/or the amount and kind of
Securities to be deposited in the Segregated Security Account. The Custodian
shall, upon its receipt of the net total amount payable to the Fund, if any,
specified in such Certificate make the payments, if any, and the deposits, if
19
any, into the Segregated Security Account as specified in the Certificate. The
deposits, if any, to be made to the Margin Account shall be made by the
Custodian in accordance with the terms and conditions of the Margin Account
Agreement.
6. Whenever a Futures Contract Option which is written by the
Fund and which is a Put Option is exercised, CPF shall promptly deliver to the
Custodian a Certificate specifying: (a) the particular Futures Contract Option
exercised; (b) the type of Futures Contract underlying such Futures Contract
Option; (c) the name of the broker or futures commission merchant through which
such Futures Contract Option is exercised; (d) the net total amount, if any,
payable to the Fund upon such exercise; (e) the net total amount, if any,
payable by the Fund upon such exercise; and (f) the amount and kind of
Securities and/or cash to be withdrawn from or deposited in the Segregated
Security Account, if any. The Custodian shall, upon its receipt of the net total
amount payable to the Fund, if any, specified in the Certificate make the
payments, if any, and the deposits, if any, into the Segregated Security Account
as specified in the Certificate. The deposits to and/or withdrawals from the
Margin Account, if any, shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
7. Whenever the Fund purchases any Futures Contract Option
identical to a previously written Futures Contract Option described in this
Article in order to liquidate its position as a writer of such Futures Contract
Option, CPF shall promptly deliver to the Custodian a Certificate specifying
with respect to the Futures Contract Option being purchased: (a) that the
transaction is a closing transaction; (b) the type of Futures Contract and such
other information as may be necessary to identify the Futures Contract
underlying the Futures Contract Option; (c) the exercise price; (d) the premium
to be paid by the Fund; (e) the expiration date; (f) the name of the broker or
futures commission merchant to which the premium is to be paid; and (g) the
amount of cash and/or the amount and kind of Securities, if any, to be withdrawn
from the Segregated Security Account. The Custodian shall effect the withdrawals
from the Segregated Security Account specified in the Certificate. The
withdrawals, if any, to be made from the Margin Account shall be made by the
Custodian in accordance with the terms and conditions of the Margin Account
Agreement.
8. Upon the expiration or exercise of, or consummation of a
closing transaction with respect to, any Futures Contract Option written or
purchased by the Fund and described in this Article, the Custodian shall (a)
delete such Futures Contract Option from the statements delivered to the Fund
pursuant to paragraph 3 of Article III herein, and (b) make such withdrawals
from, and/or, in the case of an exercise, such deposits into, the Segregated
Security Account as may be specified in a Certificate. The deposits to and/or
20
withdrawals from the Margin Account, if any, shall be made by the Custodian in
accordance with the terms and conditions of the Margin Account Agreement.
9. Futures Contracts acquired by the Fund through the exercise
of a Futures Contract Option described in this Article shall be subject to
Article VI hereof.
ARTICLE VIII
SHORT SALES
1. Promptly after any short sale, CPF shall deliver to the
Custodian a Certificate specifying: (a) the name of the issuer and the title of
the Security; (b) the number of shares or principal amount sold, and accrued
interest or dividends, if any; (c) the dates of the sale and settlement; (d) the
sale price per unit; (e) the total amount credited to the Fund upon such sales,
if any; (f) the amount of cash and/or the amount and kind of Securities, if any,
which are to be deposited in a Margin Account and the name in which such Margin
Account has been or is to be established; (g) the amount of cash and/or the
amount and kind of Securities, if any, to be deposited in a Segregated Security
Account; and (h) the name of the broker through which such short sale was made.
The Custodian shall upon its receipt of a statement from such broker confirming
such sale and that the total amount credited to the Fund upon such sale, if any,
as specified in the Certificate is held by such broker for the account of the
Custodian (or any nominee of the Custodian) as custodian of the Fund, issue a
receipt or make the deposits into the Margin Account and the Segregated Security
Account specified in the Certificate.
2. In connection with the closing-out of any short sale, CPF
shall promptly deliver to the Custodian a Certificate specifying with respect to
each such closing-out: (a) the name of the issuer and the title of the Security;
(b) the number of shares or the principal amount, and accrued interest or
dividends, if any, required to effect such closing-out to be delivered to the
broker; (c) the dates of the closing-out and settlement; (d) the purchase price
per unit; (e) the net total amount payable to the Fund upon such closing-out;
(f) the net total amount payable to the broker upon such closing-out; (g) the
amount of cash and the amount and kind of Securities to be withdrawn, if any,
from the Margin Account; (h) the amount of cash and/or the amount and kind of
Securities, if any, to be withdrawn from the Segregated Security Account; and
(i) the name of the broker through which the Fund is effecting such closing-out.
The Custodian shall, upon receipt of the net total amount payable to the Fund
upon such closing-out and the return and/or cancellation of the receipts, if
any, issued by the custodian with respect to the short sale being closed-out,
pay out of the moneys held for the account of the Fund to the broker the net
total amount payable to the broker, and make the withdrawals from the Margin
21
Account and the Segregated Security Account, as the same are specified in the
Certificate.
ARTICLE IX
REVERSE REPURCHASE AGREEMENTS
1. Promptly after the Fund enters into a Reverse Repurchase
Agreement with respect to Securities and money held by the Custodian hereunder,
CPF shall deliver to the Custodian a Certificate or in the event such Reverse
Repurchase Agreement is a Money Market Security, a Certificate, Oral
Instructions or Written Instructions specifying: (a) the total amount payable to
the Fund in connection with such Reverse Repurchase Agreement; (b) the broker or
dealer through or with which the Reverse Repurchase Agreement is entered; (c)
the amount and kind of Securities to be delivered by the Fund to such broker or
dealer; (d) the date of such Reverse Repurchase Agreement; and (e) the amount of
cash and/or the amount and kind of Securities, if any, to be deposited in a
Segregated Security Account in connection with such Reverse Repurchase
Agreement. The Custodian shall, upon receipt of the total amount payable to the
Fund specified in the Certificate, Oral Instructions or Written Instructions
make the delivery to the broker or dealer, and the deposits, if any, to the
Segregated Security Account, specified in such Certificate, Oral Instructions or
Written Instructions.
2. Upon the termination of a Reverse Repurchase Agreement
described in paragraph l of this Article, CPF shall promptly deliver a
Certificate or, in the event such Reverse Repurchase Agreement is a Money Market
Security, a Certificate, Oral instructions or Written Instructions to the
Custodian specifying: (a) the Reverse Repurchase Agreement being terminated; (b)
the total amount payable by the Fund in connection with such termination; (c)
the amount and kind of Securities to be received by the Fund in connection with
such termination; (d) the date of termination; (e) the name of the broker or
dealer with or through which the Reverse Repurchase Agreement is to be
terminated; and (f) the amount of cash and/or the amount and kind of Securities
to be withdrawn from the Segregated Security Account. The Custodian shall, upon
receipt of the amount and kind of Securities to be received by the Fund
specified in the Certificate, Oral Instructions or Written Instructions, make
the payment to the broker or dealer, and the withdrawals, if any, from the
Segregated Security Account, specified in such Certificate, Oral Instructions or
Written Instructions.
22
ARTICLE X
CONCERNING MARGIN ACCOUNTS, SEGREGATED SECURITY
ACCOUNTS AND COLLATERAL ACCOUNTS
1. The Custodian shall, from time to time, make such deposits
to, or withdrawals from, a Segregated Security Account as specified in a
Certificate received by the Custodian. Such Certificate shall specify the amount
of cash and/or the amount and kind of Securities to be deposited in, or
withdrawn from, the Segregated Security Account. In the event that CPF fails to
specify in a Certificate the name of the issuer, the title and the number of
shares or the principal amount of any particular Securities to be deposited by
the Custodian into, or withdrawn from, a Segregated Securities Account, the
Custodian shall be under no obligation to make any such deposit or withdrawal
and shall so notify the Fund.
2. The Custodian shall make deliveries or payments from a
Margin Account to the broker, dealer, futures commission merchant or Clearing
Member in whose name, or for whose benefit, the account was established as
specified in the Margin Account Agreement.
3. Amounts received by the Custodian as payments or
distributions with respect to Securities deposited in any Margin Account shall
be dealt with in accordance with the terms and conditions of the Margin Account
Agreement.
4. The Custodian shall have a continuing lien and security
interest in and to any property at any time held by the Custodian in any
Collateral Account described herein. In accordance with applicable law, the
Custodian may enforce its lien and realize on any such property whenever the
Custodian has made payment or delivery pursuant to any Put Option guarantee
letter or similar document or any receipt issued hereunder by the Custodian. In
the event the Custodian should realize on any such property net proceeds which
are less than the Custodian's obligations under any Put Option guarantee letter
or similar document or any receipt, such deficiency shall be a debt owed the
Custodian by the Fund within the scope of Article XIII herein.
5. On each business day, the Custodian shall furnish the Fund
with a statement with respect to each Margin Account in which money or
Securities are held specifying as of the close of business on the previous
business day: (a) the name of the Margin Account; (b) the amount and kind of
Securities held therein; and (c) the amount of money held therein. The Custodian
shall make available upon request to any broker, dealer or futures commission
merchant specified in the name of a Margin Account a copy of the statement
furnished the Fund with respect to such Margin Account.
6. Promptly after the close of business on each business day
in which cash and/or Securities are maintained in a Collateral Account, the
Custodian shall furnish the Fund with a Statement with respect to such
Collateral Account specifying the amount of cash and/or the amount and kind of
23
Securities held therein. No later than the close of business next succeeding the
delivery to the Fund of such statement, CPF shall furnish to the Custodian a
Certificate or Written Instructions specifying the then market value of the
securities described in such statement. In the event such then market value is
indicated to be less than the Custodian's obligation with respect to any
outstanding Put Option, guarantee letter or similar document, CPF shall promptly
specify in a Certificate the additional cash and/or Securities to be deposited
in such Collateral Account to eliminate such deficiency.
ARTICLE XI
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. CPF shall furnish to the Custodian, on behalf of the Fund,
a copy of the resolution of the Directors, certified by the Secretary or any
Assistant Secretary, either (i) setting forth the date of the declaration of a
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 that date and the total amount
payable to the Dividend Agent of the Fund on the payment date, or (ii)
authorizing the declaration of dividends and distributions on a daily basis and
authorizing the Custodian to rely on Oral Instructions, Written Instructions or
a Certificate setting forth 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 that date and the total amount payable
to the Dividend Agent on the payment date.
2. Upon the payment date specified in such resolution, Oral
Instructions, Written Instructions or Certificate, as the case may be, the
Custodian shall pay out of the moneys held for the account of the Fund the total
amount payable to the Dividend Agent of the Fund.
ARTICLE XII
SALE AND REDEMPTION OF SHARES OF COMMON STOCK
1. Whenever the Fund shall sell any of its Shares, CPF shall
deliver to the Custodian a Certificate duly specifying:
(a) The number of Shares sold, trade date, and price; and
(b) The amount of money to be received by the Custodian for
the sale of such Shares.
24
2. Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the account of the Fund.
3. Upon issuance of any of the Fund's Shares in accordance
with the foregoing provisions of this Article, the Custodian shall pay, out of
the money held for the account of the Fund, all original issue or other taxes
required to be paid by the Fund in connection with such issuance upon the
receipt of a Certificate specifying the amount to be paid.
4. Except as provided hereinafter, whenever the Fund shall
hereafter redeem any of its Shares, CPF shall furnish to the Custodian a
Certificate specifying:
(a) The number of Shares redeemed; and
(b) The amount to be paid for the Shares redeemed.
5. Upon receipt from the Transfer Agent of an advice setting
forth the number of Shares 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 held for the account of the
Fund of the total amount specified in the Certificate issued pursuant to the
foregoing paragraph 4 of this Article.
6. Notwithstanding the above provisions regarding the
redemption of any of the Fund's Shares, whenever its Shares are redeemed
pursuant to any check redemption privilege which may from time to time be
offered by the Fund, the Custodian, unless otherwise instructed by a
Certificate; shall, upon receipt of an advice from the Fund or its agent setting
forth 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 money held in the account of the Fund for such
purposes.
25
ARTICLE XIII
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian should in its sole discretion advance
funds on behalf of the Fund which results in an overdraft because the moneys
held by the Custodian for the account of the Fund shall be insufficient to pay
the total amount payable upon a purchase of Securities as set forth in a
Certificate or Oral Instructions issued pursuant to Article IV, or which results
in an overdraft for some other reason, or if the Fund is for any other reason
indebted to the Custodian (except a borrowing for investment or for temporary or
emergency purposes using Securities as collateral pursuant to a separate
agreement and subject to the provisions of paragraph 2 of this Article XIII),
such overdraft or indebtedness shall be deemed to be a loan made by the
Custodian to the Fund payable on demand and shall bear interest from the date
incurred at a rate per annum (based on a 360-day year for the actual number of
days involved) equal to the Federal Funds Rate plus 1/2%, such rate to be
adjusted on the effective date of any change in such Federal Funds Rate but in
no event to be less than 6% per annum, except that any overdraft resulting from
an error by the Custodian shall bear no interest. Any such overdraft or
indebtedness shall be reduced by an amount equal to the total of all amounts due
the Fund which have not been collected by the Custodian on behalf of the Fund
when due because of the failure of the Custodian to make timely demand or
presentment for payment. In addition, CPF hereby agrees that the Custodian shall
have a continuing lien and security interest in and to any property at any time
held by it for the benefit of the Fund or in which the Fund may have an interest
which is then in the Custodian's possession or control or in possession or
control of any third party acting in the Custodian's behalf. CPF authorizes the
Custodian, in its sole discretion, at any time to charge any such overdraft or
indebtedness together with interest due thereon against any balance of account
standing to the Fund's credit on the Custodian's books. For purposes of this
Section l of Article XIII, "overdraft" shall mean a negative Available Balance.
2. CPF will cause to be delivered to the Custodian, on behalf
of the Fund, by any bank (including, if the borrowing is pursuant to a separate
agreement, the Custodian) from which it borrows money for investment or for
temporary 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 Fund against
delivery of a stated amount of collateral. CPF shall promptly deliver to the
Custodian a Certificate specifying with respect to each such borrowing: (a) the
name of the bank; (b) the amount and terms of the borrowing, which may be set
forth by incorporating by reference an attached promissory note, duly endorsed
by CPF, or other loan agreement; (c) the time and date, if known, on which the
26
loan is to be entered into; (d) the date on which the loan becomes due and
payable; (e) the total amount payable to the Fund on the borrowing date; (f) 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; and (g) a statement specifying
whether such loan is for investment purposes or for temporary or emergency
purposes and that such loan is in conformance with the Investment Company Act of
1940 and the Fund's prospectus. The Custodian shall deliver on the borrowing
date specified in a Certificate 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 Certificate. 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 such Securities
as additional collateral as may be specified in a Certificate to collateralize
further any transaction described in this paragraph. The Fund 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 CPF fails to specify in a
Certificate the name of the issuer, the title and number of shares or the
principal amount of any particular Securities to be delivered as collateral by
the Custodian, the Custodian shall not be under any obligation to deliver any
Securities.
ARTICLE XIV
LOAN OF PORTFOLIO SECURITIES OF THE FUND
1. If the Fund is permitted by the terms of the Articles of
Incorporation of CPF and as disclosed in its most recent and currently effective
prospectus to lend its portfolio Securities, within 24 hours after each loan of
portfolio Securities CPF shall deliver or cause to be delivered to the Custodian
a Certificate specifying with respect to each such loan: (a) the name of the
issuer and the title of the Securities; (b) the number of shares or the
principal amount loaned; (c) the date of loan and delivery; (d) 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;
and (e) the name of the broker, dealer or financial institution to which the
loan was made. The Custodian shall deliver the Securities thus designated to the
broker, dealer or financial institution to which the loan was made upon receipt
of the total amount designated as to be delivered against the loan of
Securities. The Custodian may accept payment in connection with a delivery
otherwise than through the Book-Entry System or Depository only in the form of a
27
certified or bank cashier's check payable to the order of the Fund or the
Custodian drawn on New York Clearing House funds and may deliver Securities in
accordance with the customs prevailing among dealers in securities.
2. Promptly after each termination of the loan of Securities
by the Fund, CPF shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to each such loan termination and return of
Securities: (a) the name of the issuer and the title of the Securities to be
returned; (b) the number of shares or the principal amount to be returned; (c)
the date of termination; (d) the total amount to be delivered by the Custodian
(including the cash collateral for such Securities minus any offsetting credits
as described in said Certificate); and (e) the name of the broker, dealer or
financial institution from which the Securities will be returned. 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 held for the account of the Fund, the total amount
payable upon such return of Securities as set forth in the Certificate.
ARTICLE XV
CONCERNING THE CUSTODIAN
1. Except as hereinafter provided, 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, either hereunder or
under any Margin Account Agreement, 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 arising hereunder or under any Margin Account Agreement,
apply for and obtain the advice and opinion of counsel to the Fund or of its own
counsel, at the expense of the Fund, 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 Fund for any loss or damage
resulting from the use of the Book-Entry System or any Depository arising by
reason of any negligence, misfeasance or willful misconduct on the part of the
Custodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, the
Custodian shall be under no obligation to inquire into, and shall not be liable
for:
(a) The validity of the issue of any Securities purchased,
sold or written by or for the Fund, the legality of the purchase, sale or
writing thereof, or the propriety of the amount paid or received therefor;
28
(b) The legality of the issue or sale of any of the Fund's
Shares, or the sufficiency of the amount to be received therefor;
(c) The legality of the redemption of any of the Fund's
Shares, or the propriety of the amount to be paid therefor;
(d) The legality of the declaration or payment of any dividend
by the Fund;
(e) The legality of any borrowing by the Fund using Securities
as collateral;
(f) The legality of any loan of portfolio Securities pursuant
to Article XIV of this Agreement, nor shall the Custodian be under any duty or
obligation to see to it that any cash collateral delivered to it by a broker,
dealer or financial institution or held by it at any time as a result of such
loan of portfolio Securities of the Fund is adequate collateral for the Fund
against any loss it might sustain as a result of such loan. The Custodian
specifically, but not by way of limitation, shall not be under any duty or
obligation periodically to check or notify the Fund that the amount of such cash
collateral held by it for the Fund is sufficient collateral for the Fund, but
such duty or obligation shall be the sole responsibility of the Fund. In
addition, the Custodian shall be under no duty or obligation to see that any
broker, dealer or financial institution to which portfolio Securities of the
Fund are lent pursuant to Article XIV of this Agreement makes payment to it of
any dividends or interest which are payable to or for the account of the Fund
during the period of such loan or at the termination of such loan, provided,
however, that the Custodian shall promptly notify the Fund in the event that
such dividends or interest are not paid and received when due; or
(g) The sufficiency or value of any amounts of money and/or
Securities held in any Margin Account, Segregated Security Account or Collateral
Account in connection with transactions by the Fund. In addition, the Custodian
shall be under no duty or obligation to see that any broker, dealer, futures
commission merchant or Clearing Member makes payment to the Fund of any
variation margin payment or similar payment which the Fund may be entitled to
receive from such broker, dealer, futures commission merchant or Clearing
Member, to see that any payment received by the Custodian from any broker,
dealer, futures commission merchant or Clearing Member is the amount the Fund is
entitled to receive, or to notify the Fund of the Custodian's receipt or
non-receipt of any such payment; provided however that the Custodian, upon the
Fund's written request, shall, as Custodian, demand from any broker, dealer,
futures commission merchant or Clearing Member identified by the Fund the
payment of any variation margin payment or similar payment that the Fund asserts
29
it is entitled to receive pursuant to the terms of a Margin Account Agreement or
otherwise from such broker, dealer, futures commission merchant or Clearing
Member.
3. 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 Fund
until the Custodian actually receives and collects such money directly or by the
final crediting of the account representing the Fund's interest at the
Book-Entry System or the Depository.
4. The Custodian shall have no responsibility and shall not be
liable for ascertaining or acting upon any calls, conversions, exchange, offers,
tenders, interest rate changes or similar matters relating to Securities held in
the Depository, unless the Custodian shall have actually received timely notice
from the Depository. In no event shall the Custodian have any responsibility or
liability for the failure of the Depository to collect, or for the late
collection or late crediting by the Depository of any amount payable upon
Securities deposited in the Depository which may mature or be redeemed, retired,
called or otherwise become payable. However, upon receipt of a Certificate from
CPF, on behalf of the Fund, of an overdue amount on Securities held in the
Depository, the Custodian shall make a claim against the Depository on behalf of
the Fund, except that the Custodian shall not be under any obligation to appear
in, prosecute or defend any action, suit or proceeding in respect to any
Securities held by the Depository which in its opinion may involve it in expense
or liability, unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
5. The Custodian shall not be under any duty or obligation to
take action to effect collection of any amount due to the Fund from the Transfer
Agent of the Fund nor to take any action to effect payment or distribution by
the Transfer Agent of the Fund of any amount paid by the Custodian to the
Transfer Agent of the Fund in accordance with this Agreement.
6. 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 (i) it shall be directed to take such action
by a Certificate and (ii) it shall be assured to its satisfaction of
reimbursement of its costs and expenses in connection with any such action.
7. The Custodian may appoint one or more banking institutions
as Depository or Depositories or as Sub-Custodian or Sub-Custodians, including,
but not limited to, banking institutions located in foreign countries, of
Securities and moneys at any time owned by the Fund, upon terms and conditions
30
approved in a Certificate, which shall, if requested by the Custodian, be
accompanied by an approving resolution of CPF's Board of Directors adopted in
accordance with Rule 17f-5 under the Investment Company Act of 1940, as amended.
Annually, the Custodian shall provide CPF with a certificate that, to the best
of the Custodian's knowledge, each such banking institution located in a foreign
country qualifies as an "eligible foreign custodian" under Rule 17f-5 and
provides a level of safeguards for maintaining the Fund's assets in a safe and
sound manner which is, subject to local market practice, consistent with the
requirements of Rule 17f-5. Notwithstanding anything to the contrary contained
in this agreement, the Custodian shall hold harmless and indemnify the Fund from
and against all losses, actions, claims, demands, expenses and proceedings,
including counsel fees, that occur as a result of any act or omission of any
foreign Sub-Custodian or Depository with regard to the safekeeping of moneys and
securities of the Fund.
8. 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
account of the Fund are such as properly may be held by the Fund under the
provisions of its Articles of Incorporation.
9. (a) The Custodian shall be entitled to receive and the Fund
agrees to pay to the Custodian all reasonable out-of-pocket expenses and such
compensation and fees as are specified on Schedule A hereto. The Custodian shall
not deem amounts payable in respect of foreign custodial services to be
out-of-pocket expenses, it being the parties' intention that all fees for such
services shall be as set forth on Schedule B hereto and shall be provided for
the term of this Agreement without any automatic or unilateral increase. The
Custodian shall have the right to unilaterally increase the figures on Schedule
A on or after July 25, 1998 and on or after each succeeding July 25 thereafter
by on amount equal to 50% of the increase in the Consumer Price Index for the
calendar year ending on the December 31 immediately preceding the calendar year
in which such July 25 occurs, provided, however, that during each such annual
period commencing on a July 25, the aggregate increase during such period shall
not be in excess of 10%. Any increase by the Custodian shall be specified in a
written notice delivered to the Fund at least thirty days prior to the effective
date of the increase. The Custodian may charge such compensation and any
expenses incurred by the Custodian in the performance of its duties pursuant to
such agreement against any money held by it for the account of the Fund. The
Custodian shall also be entitled to charge against any money held by it for the
account of the Fund the amount of any loss, damage, liability or expense,
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 the account of the Fund include, but are not limited to, the expenses of
31
Sub-Custodians and foreign branches of the Custodian incurred in settling
outside of New York City transactions involving the purchase and sale of
Securities of the Fund.
(b) The Fund shall receive a credit for each calendar month
against such compensation and fees of the Custodian as may be payable by the
Fund with respect to such calendar month in an amount equal to the aggregate of
its Earnings Credit for such calendar month. In no event may any Earnings
Credits be carried forward to any fiscal year other than the fiscal year in
which it was earned, or, unless permitted by applicable law, transferred to, or
utilized by, any other person or entity, provided that any such transferred
Earnings Credit can be used only to offset compensation and fees of the
Custodian for services rendered to such transferee and cannot be used to pay the
Custodian's out-of-pocket expenses. For purposes of this subsection (b), the
Fund is permitted to transfer Earnings Credits only to Xxxxxxxx Partners, Inc.,
its affiliates and/or any investment company now or in the future sponsored by
Xxxxxxxx Partners, Inc. or any of its affiliates or for which Xxxxxxxx Partners,
Inc. or any of its affiliates acts as the sole investment adviser or as the
principal distributor. For purposes of this sub-section (b), a fiscal year shall
mean the twelve-month period commencing on the effective date of this Agreement
and on each anniversary thereof.
10. 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 a Certificate. The Custodian shall be
entitled to rely upon any Oral Instructions and any Written Instructions
actually received by the Custodian pursuant to Article IV or XI hereof. CPF
agrees to forward to the Custodian a Certificate or facsimile thereof,
confirming such Oral Instructions or Written Instructions in such manner so that
such Certificate or facsimile thereof is received by the Custodian, whether by
hand delivery, telex or otherwise, by the close of business of the same day that
such Oral Instructions or Written Instructions are given to the Custodian. CPF
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 on behalf of the Fund. CPF
agrees that the Custodian shall incur no liability to CPF in acting upon Oral
Instructions given to the Custodian hereunder concerning such transactions,
provided such instructions reasonably appear to have been received from an
Authorized Person.
11. The Custodian shall be entitled to rely upon any
instrument, instruction or notice received by the Custodian and reasonably
believed by the Custodian to be given in accordance with the terms and
conditions of any Margin Account Agreement. Without limiting the generality of
the foregoing, the Custodian shall be under no duty to inquire into, and shall
not be liable for, the accuracy of any statements or representations contained
32
in any such instrument or other notice including, without limitation, any
specification of any amount to be paid to a broker, dealer, futures commission
merchant or Clearing Member.
12. The books and records pertaining to the Fund which are in
the possession of the Custodian shall be the property of the Fund. Such books
and records shall be prepared and maintained as required by the Investment
Company Act of 1940, as amended, and other applicable securities laws and rules
and regulations. The Fund, or the Fund's authorized representatives, shall have
access to such books and records during the Custodian's normal business hours.
Upon the reasonable request of the Fund, copies of any such books and records
shall be provided by the Custodian to the Fund or the Fund's authorized
representative at the Fund's expense.
13. The Custodian shall provide the Fund with any report
obtained by the Custodian on the system of internal accounting control of the
Book-Entry System or the Depository, or O.C.C., and with such reports on its own
systems of internal accounting control as the Fund may reasonably request from
time to time.
14. CPF agrees to indemnify the Custodian against and hold the
Custodian harmless from all liability, claims, losses and demands whatsoever,
including attorney's fees, howsoever arising or incurred because of or in
connection with the Custodian's payment or non-payment of checks pursuant to
paragraph 6 of Article XII as part of any check redemption privilege program of
the Fund, except for any such liability, claim, loss and demand arising out of
the Custodian's own negligence or willful misconduct.
15. Subject to the foregoing provisions of this Agreement, the
Custodian may deliver and receive Securities, and receipts with respect to such
Securities, and arrange for payments to be made and received by the Custodian in
accordance with the customs prevailing from time to time among brokers or
dealers in such Securities.
16. The Custodian shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Custodian.
ARTICLE XVI
TERMINATION
1. (a) Except as provided in subparagraphs (b) and (c) herein,
either party may terminate this Agreement only by the terminating party giving
to the other party a notice in writing specifying the date of such termination,
which shall be not less than 270 days after the date of giving of such notice.
33
(b) CPF may at any time terminate this Agreement if the
Custodian has materially breached its obligations under this Agreement
and such breach has remained uncured for a period of thirty days after the
Custodian's receipt from CPF of written notice specifying such breach.
(c) Either party, immediately upon written notice to the other
party, may terminate this Agreement upon the Merger or Bankruptcy of the other
party.
In the event notice of termination is given by CPF, it shall
be accompanied by a copy of a resolution of the Directors of CPF, certified by
the Secretary or any Assistant Secretary, electing to terminate this Agreement
and designating a successor custodian or custodians, each of which shall be a
bank or trust company having not less than $2,000,000 aggregate capital, surplus
and undivided profits. In the event notice of termination is given by the
Custodian, CPF shall, on or before the termination date, deliver to the
Custodian a copy of a resolution of its Directors, certified by the Secretary or
any Assistant Secretary, designating a successor custodian or custodians. In the
absence of such designation by CPF, the Custodian may designate a successor
custodian which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. Upon the date set forth in
such notice, this Agreement shall terminate 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 owned
by the Fund and held by it as Custodian, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall then be
entitled.
2. If a successor custodian is not designated by CPF or the
Custodian in accordance with the preceding paragraph, CPF 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
System which cannot be delivered to the Fund) and moneys then owned by the Fund,
be deemed to be the Fund's 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, in any
Depository or by a Clearing Member which cannot be delivered to the Fund, to
hold such Securities hereunder in accordance with this Agreement.
34
ARTICLE XVII
MISCELLANEOUS
1. Appendix A attached hereto sets forth the names of the
present Authorized Persons. CPF agrees to furnish to the Custodian a new
Certificate in similar form in the event that any such present Authorized Person
ceases to be an Authorized Person or in the event that other or additional
Authorized Persons are elected or appointed. Until such new Certificate 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 Certificate.
2. Annexed hereto as Appendix B is a Certificate signed by two
of the present Officers of CPF under its seal, setting forth the names and the
signatures of the present Officers of CPF. CPF agrees to furnish to the
Custodian a new Certificate in similar form in the event any such present
Officer ceases to be an Officer of CPF, or in the event that other or additional
Officers are elected or appointed. Until such new Certificate shall be received,
the Custodian shall be fully protected in acting under the provisions of this
Agreement upon the signatures of the Officers as set forth in the last delivered
Certificate.
3. 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 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
Custodian may from time to time designate in writing.
4. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund, shall be sufficiently given
if addressed to the Fund and mailed or delivered to it at its office at 00
Xxxxxxxx Xxxxx, #0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000, or at such other
place as the Fund may from time to time designate in writing.
5. 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 approved by a resolution of the Directors of CPF.
6. 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 CPF without the written
consent of the Custodian, or by the Custodian without the written consent of
CPF, authorized or approved by a resolution of its Directors.
7. This Agreement shall be construed in accordance with the
laws of the State of New York.
35
8. 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, thereunto duly
authorized, and their respective corporate seals to be hereunto affixed, as of
the day and year first above written.
XXXXXXXX PARTNERS FUNDS, INC.,
on behalf of Xxxxxxxx Partners
Capital Value Fund
By:_____________________________
Attest:
------------------------
THE BANK OF NEW YORK
By:______________________________
Attest:
------------------------
36
