CUSTODY AGREEMENT
AGREEMENT dated as of March 20, 1989, between WPG GROWTH FUND (the
"Trust"), a Massachusetts business trust, having its principal office and place
of business at Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and BOSTON SAFE
DEPOSIT AND TRUST COMPANY (the "Custodian"), a Massachusetts trust company with
its principal place of business at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
W I T N E S S E T H:
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That for and in consideration of the mutual promises hereinafter set
forth, the Trust and the Custodian agree as follows:
1. DEFINITIONS:
Whenever used in this Agreement or in any Schedules to this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Authorized Person" shall be deemed to include the President, and
any Vice President, the Secretary, the Treasurer, or any other person, whether
or not any such person is an officer or employee of the Trust, duly authorized
by the Board of Trustees of the Trust to give Oral Instructions and Written
Instructions on behalf of the Trust and listed in the certification annexed
hereto as Appendix A or such other certification as may be received by the
Custodian from time to time.
(b) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency Securities, its successor
or successors and its nominee or nominees.
(c) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement to be given to
the Custodian, which is actually received by the Custodian and signed on behalf,
of the Trust by such Authorized Person as the Trust shall designate.
(d) "Declaration of Trust" shall mean the Declaration of Trust of the
Trust dated April 13, 1988 as the same may be amended from time to time.
(e) "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission under
Section 17(A) of the Securities Exchange Act of 1934, as amended, its successor
or successors and its nominee or nominees, in which the Custodian is hereby
specifically authorized to make deposits. The term "Depository" shall further
mean and include
any other person to be named in a Certificate authorized to act as a depository
under the 1940 Act, its successor or successors and its nominee or nominees.
(f) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and principal
by the Government of the United States or agencies or instrumentalities thereof,
commercial paper, bank certificates of deposit, bankers' acceptances and
short-term corporate obligations, where the purchase or sale of such securities
normally requires settlement in federal funds on the same day as such purchase
or sale, and repurchase and reverse repurchase agreements with respect to any of
the foregoing types of securities.
(g) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by the Custodian to
be an Authorized Person.
(h) "Prospectus" shall mean the Trust's current prospectus and
statement of additional information relating to the registration of the Trust's
Shares under the Securities Act of 1933, as amended.
(i) "Shares" refers to the shares of beneficial interest of the Trust.
(j) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities and investments from time to time owned by the Trust.
(k) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent functions for
the Trust.
(l) "Written Instructions" shall mean a written communication actually
received by the Custodian from a person reasonably believed by the Custodian to
be an Authorized Person by any system whereby the receiver of such communication
is able to verify through codes or otherwise with a reasonable degree of
certainty the authenticity of the sender of such communication.
(m) The "1940 Act" refers to the Investment Company Act of 1940, and
the Rules and Regulations thereunder, all as amended from time to time.
2. APPOINTMENT OF CUSTODIAN.
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(a) The Trust hereby constitutes and appoints the Custodian as
custodian of all the Securities and moneys at the time owned by or in the
possession of the Trust during the period of this Agreement.
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(b) The Custodian hereby accepts appointment as such custodian for the
Trust and agrees to Perform the duties thereof as hereinafter set forth.
3. COMPENSATION.
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(a) The Trust will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in the Fee Schedule
annexed hereto as Schedule A and incorporated herein. Such Fee Schedule does not
include out-of-pocket disbursements of the Custodian for which the Custodian
shall be entitled to xxxx separately. Out-of-pocket disbursements shall include,
but shall not be limited to, the items specified in the Schedule of
Out-of-Pocket charges annexed hereto as Schedule B and incorporated herein,
which schedule may be modified by the Custodian upon not less than thirty days
prior written notice to the Trust.
(b) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule A of this Agreement a revised Fee Schedule, dated
and signed by an Authorized Person of the Trust and a duly authorized officer of
the Custodian.
(c) The Custodian will xxxx the Trust as soon as practicable after the
end of each calendar month, and said xxxxxxxx will be detailed in accordance
with the Fee Schedule. The Trust will promptly pay to the Custodian the amount
of such billing.
4. CUSTODY OF CASH AND SECURITIES.
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(a) RECEIPT AND HOLDING OF ASSETS. The Trust will deliver or cause to
be delivered to the Custodian all Securities and moneys owned by it at any time
during the period of this Agreement. The Custodian will not be responsible for
such Securities and moneys until actually received by it. The Trust shall
instruct the Custodian from time to time in its sole discretion, by means of a
Certificate. or, in connection with the purchase or sale of Money Market
Securities, by means of Oral Instructions or Written Instructions as to the
manner in which and in what amounts Securities and moneys of the Trust are to be
deposited on behalf of the Trust in the Book-Entry System; or the Depository
provided, however, that prior to the deposit of Securities of the Trust in the
Book-Entry System or the Depository, including a deposit in connection with the
settlement of a purchase or sale, the Custodian shall have received a
Certificate specifically approving such deposits by the Custodian in the
Book-Entry System or the Depository.
(b) ACCOUNTS AND DISBURSEMENTS. The Custodian shall establish and
maintain a separate account for the Trust and shall credit to the separate
account of the Trust all moneys received by it for the account the Trust and
shall disburse the same only:
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1. In payment for Securities purchased for the Trust, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with respect
to the Shares of the Trust, as provided in Section 7
hereof;
3. In payment of original issue or other taxes with
respect to the Shares of the Trust, as provided in
Section 8 hereof;
4. In payment for Shares which have been redeemed by the
Trust, as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect to
Money Market Securities, Oral Instructions or Written
Instructions, setting forth the name and address of
the person to whom the payment is to be made, the
amount to be paid and the purpose for which payment
is to be made; or
6. In payment of fees and in reimbursement of the
expenses and liabilities of the Custodian
attributable to the Trust, as provided in Section
11(h) hereof.
(c) CONFIRMATION AND STATEMENTS. Promptly after the close of business
on each day, the Custodian shall furnish the Trust with confirmations and a
summary of all transfers to or from the account of the Trust during said day.
Where securities purchased by the Trust are in a fungible bulk of securities
registered in the name of the Custodian (or its nominee) or shown on the
Custodian's account on the books of the Depository or the Book-Entry System, the
Custodian shall by book entry or otherwise identify the quantity of those
securities belonging to the Trust. At least monthly, the Custodian shall furnish
the Trust with a detailed statement of the Securities and moneys held for the
Trust under this Agreement.
(d) REGISTRATION OF SECURITIES AND PHYSICAL SEPARATION. All Securities
held for the Trust which are issued or issuable only in bearer form, except such
Securities as are held in the Book-Entry System, shall be held by the Custodian
in that form; all other Securities held for the Trust may be registered in the
name of the Trust, in the name of any duly appointed registered nominee of the
Custodian as the Custodian may from time to time determine, or in the name of
the Book-Entry System or the Depository or their successor or successors, or
their nominee or nominees. The Trust reserves the right to instruct the
Custodian as to the method of registration and safekeeping of the Securities of
the Trust. The Trust agrees to furnish to the Custodian appropriate instruments
to enable the Custodian to hold or deliver in proper form for transfer, or to
register in the name of its registered nominee or in the name of the Book-Entry
System or the Depository, any Securities which it may hold
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for the account of the Trust and which may from time to time be registered in
the name of the Trust. The Custodian shall hold all such Securities which are
not held in the Book-Entry System or the Depository in a separate account for
the Trust in the name of the Trust physically segregated at all times from those
of any other person or persons.
(e) COLLECTION OF INCOME AND OTHER MATTERS AFFECTING SECURITIES. Unless
otherwise instructed to the contrary by a Certificate, the Custodian by itself,
or through the use of the Book-Entry System or the Depository with respect to
Securities therein deposited, shall with respect to all Securities held for the
Trust in accordance with this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable
upon all Securities which may mature or be called,
redeemed or retired, or otherwise become payable;
Notwithstanding the foregoing, the Custodian shall
have no responsibility to the Trust for monitoring or
ascertaining any call, redemption or retirement dates
with respect to put bonds which are owned by the
Trust and held by the Custodian or its nominees. Nor
shall the Custodian have any responsibility or
liability to the Trust for any loss by the Trust for
any missed payments or other defaults resulting
therefrom; unless the Custodian receives timely
notification from the Trust specifying the time,
place and manner for the presentment of any such put
bond owned by the Trust held by the Custodian or its
nominee. The Custodian shall not be responsible and
assumes no liability for the Trust for the accuracy
or completeness of any notification the Custodian may
furnish to the Trust with respect to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the
laws or regulations of any other taxing authority now
or hereafter in effect; and
5. Hold directly, or through the Book-Entry System or
the Depository with respect to Securities therein
deposited, for the account of each Portfolio all
rights and similar Securities issued with respect to
any Securities held by the Custodian hereunder for
the Trust.
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(f) DELIVERY OF SECURITIES AND EVIDENCE OF AUTHORITY. Upon receipt of
Written Instructions and not otherwise, except for subparagraphs 5, 6, 7, and 8
which may be effected by Oral or Written Instructions, the Custodian, directly
or through the use of the Book-Entry System or the Depository, shall:
1. Execute and deliver or cause to be executed and
delivered to such persons as may be designated in
such Written Instructions proxies, consents,
authorizations, and any other instruments whereby the
authority of the Trust as owner of any Securities may
be exercised;
2. Deliver or cause to be delivered any Securities held
for the Trust in exchange for other Securities or
cash issued or paid in connection with the
liquidation, reorganization, refinancing, merger,
consolidation or recapitalization of any corporation,
or the exercise of any conversion privilege;
3. Deliver or cause to be delivered any Securities held
for the Trust to any protective committee,
reorganization committee or other person in
connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of
assets of any corporation, and receive and hold under
the terms of this Agreement in the separate account
for the Trust such certificates of deposit, interim
receipts or other instruments or documents as may be
issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges
of the assets to the Trust and take such other steps
as shall be stated in said Certificate to be for the
purpose of effectuating any duly authorized plan of
liquidation, reorganization, merger, consolidation or
recapitalization of the Trust;
5. Deliver Securities owned by the Trust upon sale of
such Securities for the account of the Trust pursuant
to Section 5;
6. Deliver Securities owned by the Trust upon the
receipt of payment in connection with any repurchase
agreement related to such Securities entered into by
the Trust;
7. Deliver Securities owned by the Trust to the issuer
thereof or its agent when such Securities are called,
redeemed, retired or otherwise become payable;
provided, however, that in any such case the cash or
other consideration is to be delivered to the
Custodian; Notwithstanding the foregoing, the
Custodian shall
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have no responsibility to the Trust for monitoring or
ascertaining any call, redemption or retirement dates
with respect to the put bonds which are owned by the
Trust and held by the Custodian or its nominee. Nor
shall the Custodian have any responsibility or
liability to the Trust for any loss by the Trust for
any missed payment or other default resulting
therefrom; unless the Custodian received timely
notification from the Trust specifying the time,
place and manner for the presentment of any such put
bond owned by the Trust and held by the Custodian or
its nominee. The Custodian shall not be responsible
and assumes no liability to the Trust for the
accuracy or completeness of any notification the
Custodian may furnish to the Trust with respect to
put bonds;
8. Deliver Securities owned by the Trust for delivery in
connection with any loans of securities made by the
Trust but only against receipt of adequate collateral
as agreed upon from time to time by the Custodian and
the Trust which :nay be in the form of cash or
obligations issued by the United States government,
its agencies or instrumentalities;
9. Deliver Securities owned by the Trust for delivery as
security in connection with any borrowings by the
Trust requiring a pledge of Trust assets, but only
against receipt of amounts borrowed;
10. Deliver Securities owned by the Trust upon receipt of
instructions from the Trust for delivery to the
Transfer Agent or to the holders of Shares in
connection with distributions in kind, as may be
described from time to time in the Trust's
Prospectus, in satisfaction of requests by holders of
Shares for repurchase or redemption; and
11. Deliver Securities owned by any Portfolio for any
other proper business purpose, but only upon receipt
of, in addition to Written Instructions, a certified
copy of a resolution of the Board of Trustees signed
by an Authorized Person and certified by the
Secretary of the Trust, specifying the Securities to
be delivered, setting forth the purpose for which
such delivery is to be made, declaring such purpose
to be a proper business purpose, and naming the
person or persons to whom delivery of such Securities
shall be made.
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(g) ENDORSEMENT AND COLLECTION~OF CHECKS ETC. The Custodian is hereby
authorized to endorse and collect all checks, drafts or other orders for the
payment of money received by the Custodian for the account of the Trust.
5. PURCHASE AND SALE OF INVESTMENTS OF THE TRUST.
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(a) Promptly after each purchase of Securities for the Trust, the Trust
shall deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, Written Instruction, and (ii) with
respect to each purchase of Money Market Securities, either Written or Oral
Instruction, in either case specifying with respect to each purchase: (1) the
name of the issuer and the title of the securities; (2) the number of shares or
the principal amount purchased and accrued interest, if any; (3) the date of
purchase and settlement; (4) the purchase price per unit; (5) the total amount
payable upon such purchase; (6) the name of the person from whom or the broker
through whom the purchase was made, if any; (7) whether or not such purchase is
to be settled through the Book-Entry System or the Depository; and (8) whether
the Securities purchased are to be deposited in the Book-Entry System or the
Depository. The Custodian shall receive all Securities purchased by or for the
Trust and upon receipt of such Securities shall pay out of the moneys held for
the account of the Trust the total amount payable upon such purchase, provided
that the same conforms to the total amount payable as set forth in such Written
or Oral Instructions.
(b) Promptly after each sale of Securities of the Trust, the Trust
shall deliver to the Custodian (i) with respect to each sale of Securities which
are not Money Market Securities, Written Instruction, and (ii) with respect to
each sale of Money Market Securities, either Written or Oral Instruction, in
either case specifying with respect to such sale: (1) the name of the issuer and
the title of the Securities; (2) the number of shares or principal amount sold,
and accrued interest, if any; (3) the date of sale; (4) the sale price per unit;
(5) the total amount payable to the Trust upon such sale; (6) the name of the
broker through whom or the person to whom the sale was made; and (7) whether or
not such sale is to be settled through the Book-Entry System or the Depository.
The Custodian shall deliver or cause to be delivered the Securities to the
broker or other person designated by the Trust upon receipt of the total amount
payable to the Trust upon such sale, provided that the same conforms to the
total amount payable to the Trust as set forth in such Written Instruction or
such Oral Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver Securities
and arrange for payment in accordance with the customs prevailing among dealers
in Securities.
6. LENDING OF SECURITIES.
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If the Trust is permitted by the terms of the Declaration of Trust and
as disclosed in its Prospectus to lend Securities, within 24 hours after each
loan of
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Securities, the Trust shall deliver to the Custodian Written Instruction
specifying with respect to each such loan: (1) the name of the issuer and the
title of the Securities; (2) the number of shares or the principal amount
loaned; (3) the date of loan and delivery; (4) the total amount to be delivered
to the Custodian, against the loan of the Securities, including the amount of
cash collateral and the premium, if any, separately identified; (5) the name of
the broker, dealer or financial institution to which the loan was made; and (6)
whether the Securities loaned are to be delivered through the Book-Entry System
or the Depository.
Promptly after each termination of a loan of Securities, the Trust
shall deliver to the Custodian Written Instruction specifying with respect to
each such loan termination and return of Securities: (1) the name of the issuer
and the title of the Securities to be returned; (2) the number of shares or the
principal amount to be returned; (3) the date of termination; (4) the total
amount to be delivered by the Custodian (including the cash collateral for such
Securities minus any offsetting credits as described in said Written
Instructions); (5) the name of the broker, dealer or financial institution from
which the Securities will be returned; and (6) whether such return is to be
effected through the Book-Entry System or the Depository. The Custodian shall
receive all Securities returned from the broker, dealer or financial institution
to which such Securities were loaned and upon receipt thereof shall pay out of
the moneys of the Trust, the total amount payable upon such return of Securities
as set forth in the Written Instruction. Securities returned to the Custodian
shall be held as they were prior to such loan.
7. PAYMENT OF DIVIDENDS OR DISTRIBUTIONS.
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(a) The Trust shall furnish to the Custodian the resolution of the
Board of Trustees of the Trust certified by the Secretary (i) authorizing the
declaration of dividends of the Trust on a specified periodic basis and
authorizing the Custodian to rely on Oral or Written Instructions specifying the
date of the declaration of such dividend or distribution, the date of payment
thereof, the record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of record as of the
record date and the total amount payable to the Transfer Agent on the payment
date, or (ii) setting forth the date of declaration of any dividend or
distribution by of the Trust, the date of payment thereof, the record date as of
which shareholders entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date and the total
amount payable to the Transfer Agent on the payment date.
(b) Upon the payment date specified in such resolution, Oral
Instructions. or Written Instructions, as the case may be, the Custodian shall
pay out the moneys specifically allocated to and held for the account of the
Trust the total amount payable to the Transfer Agent of the Trust.
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8. SALE AND REDEMPTION OF SHARES OF THE TRUST.
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(a) Whenever the Trust shall sell any Shares of the Trust, the Trust
shall deliver or cause to be delivered to the Custodian a Written Instruction
duly specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian
for the sale of such Shares.
(b) Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Trust.
(c) Upon issuance of any Shares of the Trust in accordance with the
foregoing provisions of this Section 8, the Custodian shall pay, all original
issue or other taxes required to be paid in connection with such issuance upon
the receipt of Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of the Trust are
redeemed, the Trust shall cause the Transfer Agent to promptly furnish to the
Custodian Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares of the Trust received by the Transfer Agent for redemption and
that such Shares are valid and in good form for redemption, the Custodian shall
make payment to the Transfer Agent the total amount specified in the Written
Instruction issued pursuant to paragraph (d) of this Section 8.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Trust, the Custodian,
unless otherwise instructed by Written Instruction shall, upon receipt of advice
from the Trust or its agent stating that the redemption is in good form for
redemption in accordance with the check redemption procedure, honor the check
presented as part of such check redemption privilege out of the moneys of the
Trust.
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9. INDEBTEDNESS.
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(a) The Trust will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Trust borrows money for temporary
administrative or emergency purposes using Securities as collateral for such
borrowings, a notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the Trust against
delivery of a stated amount of collateral. The Trust shall promptly deliver to
the Custodian Written or Oral Instructions stating with respect to each such
borrowing: (1) the name of the bank; (2) the amount and terms of the borrowing,
which may be set forth by incorporating by reference an attached promissory
note, duly endorsed by the Trust, or other loan agreement; (3) the time and
date, if known, on which the loan is to be entered into (the "borrowing date");
(4) the date on which the loan becomes due and payable; (5) the total amount
payable to the Trust on the borrowing date; (6) the market value of Securities
to be delivered as collateral for such loan, including the name of the issuer,
the title and the number of shares or the principal amount of any particular
Securities; (7) whether the Custodian is to deliver such collateral through the
Book-Entry System or the Depository; and (8) a statement that such loan is in
conformance with the 1940 Act and the Trust's Prospectus.
(b) Upon receipt of Written Instruction referred to in subparagraph (a)
above, the Custodian shall deliver on the borrowing date the specified
collateral and the executed promissory note, if any, against delivery by the
lending bank of the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in the Written or Oral
Instructions. The Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver as additional collateral in the manner
directed by the Trust from time to time such Securities as may be specified in
Written or Oral Instructions to collateralize further any transaction described
in this Section 9. The Trust shall cause all Securities released from collateral
status to be returned directly to the Custodian, and the Custodian shall receive
from time to time such return of collateral as may be tendered to it. In the
event that the Trust fails to specify in Written or Oral Instructions all of the
information required by this Section 9, the Custodian shall not be under any
obligation to deliver any Securities. Collateral returned to the Custodian shall
be held hereunder as it was prior to being used as collateral.
10. PERSONS HAVING ACCESS TO ASSETS OF THE TRUST.
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(a) No Trustee, officer, employee or agent of the Trust, and no
officer, director, employee or agent of the investment adviser, shall have
physical access to the assets of the Trust held by the Custodian or be
authorized or permitted to withdraw any investments of the Trust, nor shall the
Custodian deliver any assets of
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the Trust to any such person. No officer, director, employee or agent of the
Custodian who holds any similar position with the Trust or the investment
adviser shall have access to the assets of the Trust.
(b) The individual employees of the Custodian duly authorized by the
Board of Directors of the Custodian to have access to the assets of the Trust
are listed in the certification annexed hereto as Appendix C. The Custodian
shall advise the Trust of any change in the individuals authorized to have
access to the assets of the Trust by written notice to the Trust accompanied by
a certified copy of the authorizing resolution of the Custodian's Board of
Directors approving such change.
(c) Nothing in this Section 10 shall prohibit any officer, employee or
agent of the Trust, or any officer, director, employee or agent of the
investment adviser, from giving Oral Instructions or Written Instructions to the
Custodian or executing a Certificate so long as it does not result in delivery
of or access to assets of the Trust prohibited by paragraph (a) of this Section
10.
11. CONCERNING THE CUSTODIAN.
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(a) STANDARD OF CONDUCT. Except as otherwise provided herein,, neither
the Custodian nor its nominee shall be liable for any loss or damage, including
counsel fees, resulting from its action or omission to act or otherwise, except
for any such loss or damage arising out of its own negligence or willful
misconduct. The Custodian may. with respect to questions of law, apply for and
obtain the advice and opinion of counsel to the Trust or of its own counsel, at
the expense of the Trust, and shall be fully protected with respect to anything
done or omitted by it in good faith in conformity with such advice or opinion.
The Custodian shall be liable to the Trust for any loss or damage resulting from
the use of the Book-Entry System or the Depository arising by reason of any
negligence, misfeasance or misconduct on the part of the Custodian or any of its
employees or agents.
(b) LIMIT OF DUTIES. Without limiting the generality of the foregoing.
the Custodian shall be under no duty or obligation to inquire into, and shall
not be liable for:
1. The validity of the issue of any Securities purchased
by the Trust, the legality of the purchase thereof,
or the propriety of the amount paid therefor;
2. The legality of the sale of any Securities by the
Trust, or the propriety of the amount for which the
same are sold;
3. The legality of the issue or sale of any Shares, or
the sufficiency of the amount to be received
therefor;
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4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
dividend or other distribution of the Trust;
6. The legality of any borrowing for temporary or
emergency administrative purposes.
(c) NO LIABILITY UNTIL Receipt. The Custodian shall not be liable for,
or considered to be the Custodian of, any money, whether or not represented by
any check, draft, or other instrument for the payment of money,- received by it
on behalf of the Trust until the Custodian actually receives and collects such
money directly or by the final crediting of the account representing the Trust's
interest in the Book-Entry System or the Depository. The Custodian shall
exercise diligence appropriate to first class mutual fund custodians in pursuing
payment on any such instrument, or any' dividend, interest or other receivable
of the Trust.
(d) AMOUNTS DUE FROM TRANSFER AGENT. The Custodian shall not be under
any duty or obligation to take action to effect collection of any amount due to
the Trust from the Transfer Agent nor to take any action to effect payment or
distribution by the Transfer Agent of any amount paid by the Custodian to the
Transfer Agent in accordance with this Agreement.
(e) COLLECTION WHERE PAYMENT REFUSED. The Custodian shall not be under
any duty or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment is
refused after due demand or presentation, unless and until (a) it shall be
directed to take such action by a Certificate and (b) it shall be assured to its
satisfaction of reimbursement of its costs and expenses in connection with any
such action.
(f) APPOINTMENT OF AGENTS AND SUB-CUSTODIANS. The Custodian may appoint
one or more banking institutions, including but not limited to banking or other
qualified institutions located in foreign countries, to act as Depository or
Depositories or as Sub-Custodian or as Sub-Custodians of Securities and moneys
at any time owned by the Trust, upon terms and conditions specified in a
Certificate. The Custodian shall use reasonable care in selecting a Depository
and/or Sub-Custodian located in a country other than the United States ("Foreign
Sub-Custodian"), and shall oversee the maintenance of any Securities or moneys
of the Trust by any Foreign Sub-Custodian. Any selection of and form of contract
with a Foreign Custodian shall be subject to approval by the Trust that such
selection and contract are consistent with the requirements of Rule 17f-5 (and
Rule 17f-4, if applicable) under the 1940 Act, and the Custodian shall provide
the Trust with such
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information and recommendations as may be reasonably necessary as a basis for
such approval.
(g) NO DUTY TO ASCERTAIN AUTHORITY. The Custodian shall not be under
any duty or obligation to ascertain whether any Securities at any time delivered
to or held by it for the Trust are such as may properly be held by the Trust
under the provisions of the Declaration of Trust and the Prospectus.
(h) COMPENSATION OF THE CUSTODIANS. The Custodian shall be entitled to
receive, and the Trust agrees to pay to the Custodian, such compensation as may
be agreed upon from time to time between the Custodian and the Trust. The
Custodian may charge against any moneys of the Trust such compensation and any
expenses incurred by the Custodian in the performance of its duties pursuant to
such agreement with respect to the Trust. The Custodian shall also be entitled
to charge against any money held by it the amount of any loss, damage, liability
or expense incurred with respect to the Trust, including counsel fees, for which
it shall be entitled to reimbursement under the provisions of this Agreement.
The expenses which the Custodian may charge against such account
include, but are not limited to, the expenses of Sub-Custodians and foreign
branches of the Custodian incurred in settling transactions outside of Boston,
Massachusetts or New York City, New York involving the purchase and sale of
Securities of any Portfolio.
(i) RELIANCE ON CERTIFICATES AND INSTRUCTIONS. The Custodian shall be
entitled to rely upon any Certificate, notice or other instrument in writing
received by the Custodian and reasonably believed by the Custodian to be genuine
and to be signed by the required number of officers of the Trust. The Custodian
shall be entitled to rely upon any Written Instructions or Oral instructions
actually received by the Custodian pursuant to the applicable Sections of this
Agreement and reasonably believed by the Custodian to be genuine and to be given
by an Authorized Person. The Trust agrees to forward to the Custodian Written
Instructions from an Authorized Person confirming such Oral Instructions in such
manner so that such Written Instructions are received by the Custodian, whether
by hand delivery, telex or otherwise, by the close of business on the same day
that such Oral Instructions are given to the Custodian. The Trust agrees that
the fact that such confirming instructions are not received by the Custodian
shall in no way affect the validity of the transactions or enforceability of the
transactions hereby authorized by the Trust. The Trust agrees that the Custodian
shall incur no liability to the Trust in acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions provided such instructions
reasonably appear to have been received from a duly Authorized Person.
(j) INSPECTION OF BOOKS AND RECORDS. The books and records of the
Custodian shall be open to inspection and audit at reasonable times by officers
and
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auditors employed by the Trust and by employees of the Securities and Exchange
Commission.
The Custodian shall provide the Trust with any report obtained by the
Custodian on the system of internal accounting control of the Book-Entry System
or the Depository and with such reports on its own systems of internal
accounting control as the Trust may reasonably request from time to time.
12. TERM AND TERMINATION.
---------------------
(a) This Agreement shall become effective on the date first set forth
above and shall continue in effect thereafter from year to year unless
termination pursuant to Section 12(b) of this Agreement.
(b) Either of the parties hereto may terminate this Agreement by giving
to the other party a notice in writing specifying the date of such termination,
which shall be not less than 120 days after the date of receipt of such notice.
In the event such notice is given by the Trust, it shall be accompanied by a
certified resolution of the Board of Trustees of the Trust, electing to
terminate this Agreement and designating a successor custodian or custodians,
which shall be a person qualified to so act under the 1940 Act or undertaking to
make such designation at least 30 days prior to the termination date. In the
event such notice is given by the Custodian, the Trust shall, on or before the
termination date, deliver to the Custodian a certified resolution of the Board
of Trustees of the Trust, designating a successor custodian or custodians. In
the absence of such designation by the Trust, the Custodian may designate a
successor custodian, which shall be a person qualified to so act under the 0000
Xxx. If the Trust fails to designate a successor custodian the Trust shall upon
the date specified in the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities (other than Securities held in the
Book-Entry Systems which cannot be delivered to the Trust) and moneys then owned
by the Trust be deemed to be its own custodian and the Custodian shall thereby
be relieved of all duties and responsibilities pursuant to this Agreement, other
than the duty with respect to Securities held in the Book-Entry System which
cannot be delivered to the Trust.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in such
notice, and the Custodian shall upon receipt of a notice of acceptance by the
successor custodian on that date deliver directly to the successor custodian all
Securities and moneys then held by the Custodian after deducting all fees,
expenses and other amounts for the payment or reimbursement of which it shall
then be entitled, and otherwise cooperate in the transfer of its duties and
responsibilities hereunder.
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13. MISCELLANEOUS.
--------------
(a) Annexed hereto as Appendix A is a certification signed by the
Secretary of the Trust setting forth the names and the signatures of the present
Authorized Persons. The Trust agrees to furnish to the Custodian a new
certification in similar form in the event that any such present Authorized
Person ceases to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully protected in
acting under the provisions of this Agreement upon Oral Instructions or
signatures of the present Authorized Persons as set forth in the last delivered
certification.
(b) Annexed hereto as Appendix B is a certification signed by the
Secretary of the Trust setting forth the names and the signatures of the present
officers of the Trust. The Trust agrees to furnish to the Custodian a new
certification in similar form in the event any such present officer ceases to be
an officer of the Trust or in the event that other or additional officers are
elected or appointed. Until such new certification shall be received, the
Custodian shall be fully protected in acting under the provisions of this
Agreement upon the signature of the officers as set forth in the last delivered
certification.
(c) The Custodian shall provide the Trust and/or its investment manager
such reports on securities and cash positions, transaction fails, aging of
receivables and other relevant data as the Trust or investment manager may
reasonably require and shall reconcile any differences with the records of the
Trust's pricing and bookkeeping agent. The Custodian will also timely provide
the Trust's pricing and bookkeeping agent with such information in the
Custodian's possession as the pricing and bookkeeping agent may reasonably
require.
(d) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at Xxx
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 Attn: Xxxx Xxxxxxxx or at such other
place as the Custodian may from time to time designate in writing.
(e) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Trust, shall be sufficiently given if
addressed to the Trust and mailed or delivered to it at its offices at Xxx Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxx X. Xxxxx, or at such other place
as the Trust may from time to time designate in writing.
(f) This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the same formality as this
Agreement, and as may be permitted or required by the 1940 Act.
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(g) This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Trust without the written
consent of the Custodian, or by the Custodian without the written consent of the
Trust authorized or approved by a resolution of the Board of Trustees of the
Trust, and any attempted assignment without such written consent shall be null
and void.
(h) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts.
(i) It is expressly agreed to that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents, or employees of the Trust, personally, but bind only the trust
property of the Trust, as provided in the Declaration of Trust of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and signed by an authorized officer of the Trust, acting as such, and
neither such authorization by such Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in its Declaration of Trust.
(j) The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(k) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
WPG GROWTH FUND
By: /s/
--------------------------
BOSTON SAFE DEPOSIT AND TRUST
COMPANY
By: /s/
--------------------------
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APPENDIX A
I, XXXX X. XXXX , Secretary of WPG GROWTH FUND, a Massachusetts
business trust (the "Trust"), do hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Oral Instructions and Written Instructions on behalf of the
Trust and the signatures set forth opposite their respective names are their
true and correct signatures:
NAME SIGNATURE
---- ---------
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
Xxxx X. Xxxx, Secretary
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CUSTODY AGREEMENT
-----------------
OUT-OF-POCKET EXPENSES
----------------------
SCHEDULE B
----------
Reimbursable out-of-pocket expenses will be added to each monthly
invoice and will include, but not limited to, such customary items as telephone,
wire charges ($5.50 per wire) postage, insurance, pricing services, courier
services and duplicating charges.
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CUSTODY AGREEMENT
-----------------
FEE SCHEDULE
------------
SCHEDULE A
----------
Xxxxx Xxxx and Xxxxx Funds Trust, WPG Fund, WPG Growth Fund and Tudor
Fund (collectively referred to as the "Trusts") agree to pay to Boston Safe
Deposit and Trust Company the following fees. Such fees to be calculated on the
daily net assets of the combined Trusts.
DOMESTIC SAFEKEEPING FEE:
-------------------------
COMBINED ASSETS ANNUAL FEE RATE
--------------- ---------------
First $50 million .0002
Next $100 million .000175
Next $100 million .000150
Excess .000100
TRANSACTION CHARGES
-------------------
Fee per non-depository eligible securities $17.00
Fee per depository eligible securities $10.00
Fee per mortgage-backed securities paydown $10.00
Fee per option and futures $17.00
Fee per foreign transaction $27.00
Fee per issue per annum $12.00
Fee per short term security held in the
account for two months or longer $ 5.00
CREDIT INCOME
-------------
Income Collection on Equities and Bonds Interest Income will be
credited in good funds on payable date plus one.
GNMAE will be credited in good funds on the fourth (4th) business day
after payable date. First month principle and interest payment into a new pool
will be credited on a when collected basis.
Variable Rate Bond Income will be credited upon receipt of good funds.
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SPECIAL SERVICES
----------------
Fees for activities of a non-recurring nature such as portfolio
consolidation or reorganization, extraordinary shipments and the preparation of
special reports will be subject to negotiation.
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AMENDED SCHEDULE A
------------------
WPG Growth Fund
Effective January, 1996
Asset Based Fee's (Domestic) .0001
(Global) Category One .0009
Category Two & Three .0030
Transaction Charges: (Domestic)
Depository Eligible (DTC, PTC, FBE, Muni Book Entry) 8.00
Physical 30.00
Paydown 5.00
Time Deposit/Mutual Fund (Other than Dreyfus) 17.00
Options: (open, close) 25.00
Options: (exercised, expired) 10.00
Transaction Charges: (Global)
Euroclear/Cedel/First Chicago 25.00
Category One 25.00
Category Two 35.00
Category Three 60.00
Third Party Foreign Exchange 20.00
Category One: Australia, Canada, Germany, Japan, Belgium, Denmark,
France, Ireland, Italy, Netherlands, New Zealand, South
Africa, Spain, Sweden, Switzerland, United Kingdom,
Austria, Finland, Hong Kong, Israel, Malaysia, Mexico,
Norway, South Korea, Singapore, Thailand
Category Two: Argentina, Czech Republic, Philippines, Sri Lanka, Taiwan,
Turkey
Category Three: Indonesia, Luxembourg, Peru, Portugal, Bangladesh, Brazil,
China-Shanghai, China Shenzhen, Colombia, Greece, Hungary,
India, Jordan, Pakistan, Poland, Venezuela
OUT-OF-POCKET: Mellon Trust will pass through to any client any out of pocket
expenses including but not limited to, postage, wire charges, courier expense,
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registration fees, stamp duties, telex charges, custom reporting or custom
programming, internal/external tax, legal or consulting costs, proxy voting
expenses, etc.
EARNINGS ALLOWANCE: An earnings allowance calculated at a rate equivalent to 70%
of the 90 day US Treasury Xxxx rate will be available to offset custody bills.
Excess earnings allowances will be applied to future custody bills. However,
excess earnings allowances can only be used to offset custody bills in the same
calendar year.
Executed and duly authorized by:
WPG Growth Fund Boston Safe Deposit & Trust Company
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXXXXXXX XXXXX
--------------------- ---------------------
Title: VICE PRESIDENT Title: VICE PRESIDENT
--------------------- ---------------------
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