CUSTODIAN AGREEMENT
between
WHITEHALL FUNDS TRUST
and
IBJ WHITEHALL BANK & TRUST COMPANY
DATED NOVEMBER 18, 1994
AMENDED OCTOBER 26, 2000
164
TABLE OF CONTENTS
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PAGE NO.
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I. DEFINITION AND EMPLOYMENT OF IBJ AS CUSTODIAN AND PROPERTY TO
BE HELD BY IT..........................................................1
II.DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF THE TRUST HELD BY THE CUSTODIAN.....................................2
A. Holding Securities..............................................3
B. Delivery of Securities..........................................3
C. Registration of Securities......................................7
D. Bank Accounts...................................................7
E. Payments for Portfolio Shares...................................8
F. Availability of Federal Funds...................................8
G. Collection of Income............................................8
H. Payment of Portfolio Moneys.....................................9
I. Liability for Payment in Advance of Receipt
of Securities Purchased......................................11
J. Payments for Repurchases or Redemptions of
Portfolio Shares of the Trust................................11
K. Appointment of Agents..........................................12
L. Deposit of Portfolio Assets in a Securities
Systems......................................................12
M. Ownership Certificates for Tax Purchases.......................15
N. Proxies........................................................15
O. Communications Relating to Portfolio
Securities...................................................16
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P. Proper Instructions............................................18
Q. Actions Permitted Without Express Authority....................18
R. Evidence of Authority..........................................20
S. No Liability Until Receipt.....................................20
T. Segregated Accounts............................................20
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF
ACCOUNT AND CALCULATION OF NET ASSET VALUE
AND NET INCOME......................................................21
IV. RECORDS.............................................................21
V. OPINIONS OF TRUST'S INDEPENDENT PUBLIC
ACCOUNTANTS.........................................................22
VI. REPORTS TO EACH PORTFOLIO AND INDEPENDENT
PUBLIC ACCOUNTANTS..................................................22
VII. COMPENSATION OF CUSTODIAN...........................................23
VIII.RESPONSIBILITY OF CUSTODIAN.........................................23
IX. FUNDS TRANSFERS.....................................................25
X. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT.........................26
XI. SUCCESSOR CUSTODIAN.................................................28
XII. INTERPRETIVE AND ADDITIONAL PROVISIONS..............................30
XIII.TRUSTEES............................................................30
XIV. APPLICABLE LAW......................................................30
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CUSTODIAN AGREEMENT
This Custodian Agreement between Whitehall Funds Trust,
hereinafter called the "Trust," a Delaware business trust, organized on August
25, 1994, pursuant to the Trust Instrument, as the same may be amended from time
to time, and IBJ Whitehall Bank & Trust Company, hereinafter called "IBJ" or the
"Custodian."
WITNESSETH:
That in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
I. DEFINITIONS AND EMPLOYMENT OF IBJ AS CUSTODIAN AND PROPERTY TO BE HELD BY IT.
The Trust is an open-end investment company organized under the General Laws of
the State of Delaware. The Trust's shares of beneficial interest may be
classified into series in which each series represents the entire undivided
interests of a separate portfolio of assets. For all purposes of this Agreement,
a "Portfolio" shall mean a separate portfolio of assets of the Trust and a
"Series" shall mean the series of shares of beneficial interest representing
undivided interests in a Portfolio. The portfolios of the Trust are listed on
Exhibit A hereto, as may be amended from time to time. For the purposes of this
Agreement, the term "Portfolio Shares" shall be deemed to refer to the shares of
beneficial interest which are offered for each Portfolio, and the term "Adviser"
shall be deemed to refer to the investment adviser of the Trust. The Trust
hereby employs IBJ as the custodian of the assets of each Portfolio. In the
event the Trust establishes one or more portfolios other than the Portfolios
with respect to which the Trust decides to retain the Custodian to act as
custodian hereunder, the Trust shall so notify the Custodian in writing. If the
Custodian is willing to render such services, the Custodian shall promptly
notify the Trust in writing whereupon such portfolio shall be deemed to be a
Portfolio hereunder. The Trust agrees to deliver to IBJ all securities other
than securities issued by the Trust (the "Portfolio Securities") and cash owned
by the Trust for the account of each Portfolio, and all payments of income,
payments of principal or capital distributions received by the Trust
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with respect to all securities owned by the Trust for the account of each
Portfolio from time to time, and the cash consideration received by the Trust
for Portfolio Shares which may be issued or sold from time to time. IBJ shall
not be responsible for any property of the Trust held or received by the Trust
and not delivered to IBJ.
The Custodian may from time to time employ one or more
sub-custodians. The terms of each sub-custodian agreement shall be approved by a
vote of the Trustees of the Trust. Each sub-custodian agreement shall specify
the same standard of care as is set forth in this Agreement.
II. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE TRUST HELD BY
THE CUSTODIAN.
A. HOLDING SECURITIES. The Custodian shall hold, earmark and
physically segregate for the account of each Portfolio all non-cash property
delivered to it, including all securities owned by each Portfolio, other than
securities which are maintained pursuant to Section L of this Article II in a
clearing agency which acts as a securities depository or in a book-entry system
authorized by the U.S. Department of the Treasury, collectively referred to
herein as a "Securities System".
B. DELIVERY OF SECURITIES. The Custodian shall release and
deliver securities owned by each Portfolio held by the Custodian or in a
Securities System account of the Custodian only upon receipt of Proper
Instructions (as defined below in Section P of this Article II), which may be
continuing instructions when deemed appropriate by the Trust and the Custodian,
and only in the following cases:
(1) Except in the case of a sale effected through a Securities
System, upon sale of such securities for the account of each
Portfolio and receipt of payment therefor;
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(2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by a
Portfolio;
(3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section L hereof;
(4) To the transfer or forwarding agent in connection with tender
or other similar offers for Portfolio Securities of each
Portfolio;
(5) To the issuer thereof or its agent when such Portfolio
Securities are called, redeemed, retired or otherwise become
payable; provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
(6) To the issuer thereof, or its agent, for transfer into the
name of a Portfolio or into the name of any nominee or
nominees of the Custodian or into the name or nominee name of
any agent appointed pursuant to Section K of this Article II
or into the name or nominee name of any sub-custodian
appointed pursuant to Article I; or for exchange for a
different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of
units; provided that, in any such case, the new securities are
to be delivered to the Custodian;
(7) Upon the sale of such securities for the account of a
Portfolio, to the broker or its clearing agent against a
receipt for examination in accordance with "street delivery"
custom;
(8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer, or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered
to the Custodian;
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(9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to
be delivered to the Custodian;
(10) For delivery in connection with any loans of securities made
by a Portfolio, BUT ONLY against Proper Instructions from the
Adviser, against receipt of the designated collateral, which
may be in the form of cash or obligations issued by the United
States Government, its agencies or instrumentalities;
(11) For delivery as security in connection with any borrowings by
a Portfolio requiring a pledge of assets by such Portfolio,
but only against receipt of amounts borrowed;
(12) Upon receipt of instructions from the transfer agent for the
Trust, for delivery to such transfer agent or to holders of
Portfolio Shares in connection with distributions in kind in
satisfaction of requests by holders of Portfolio Shares for
repurchase or redemption;
(13) For delivery in accordance with the provisions of any
agreement among the Portfolio, the Custodian and a
broker-dealer registered under the Securities Exchange Act of
1934 (the "Exchange Act") and a member of The National
Association of Securities, Inc. (the "NASD"), relating to
compliance with the rules of The Options Clearing Corporation
and of any registered national securities exchange, or of any
similar organization or organizations, regarding escrow or
other arrangements in connection with transactions by the
Portfolio;
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(14) For delivery in accordance with the provisions of any
agreement among the Portfolio, the Custodian, and a Futures
Commission Merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market or any
similar organization or organizations, regarding account
deposits in connection with transactions by the Portfolio; and
(15) For any other proper corporate purposes, but only upon receipt
of, in addition to Proper Instructions, a notification signed
by two officers of the Trust and certified by the Secretary or
an Assistant Secretary of the Trust, specifying the securities
to be delivered, setting forth the purposes for which such
delivery is to be made, declaring such purposes to be proper
corporate purposes, and naming the person or persons to whom
delivery of such securities shall be made.
C. REGISTRATION OF SECURITIES. Securities held by the
Custodian (other than bearer securities) shall be registered in the name of a
Portfolio or in the name of any nominee of the Custodian, or in the name or
nominee name of any agent appointed pursuant to Section K of Article II hereof
or in the name or nominee name of any sub-custodian appointed pursuant to
Article I. All securities accepted by the Custodian on behalf of a Portfolio
under the terms of this Contract shall be in "street" or other good delivery
form.
D. BANK ACCOUNTS. The Custodian shall open and maintain a
separate bank account or accounts in the name of each Portfolio, subject only to
draft or order by the Custodian acting pursuant to the terms of this Contract,
and shall hold in such account or accounts, subject to the provisions hereof,
all cash received by it from or for the account of each Portfolio, other than
cash maintained by each Portfolio in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940. Funds held
by the Custodian for each Portfolio may be deposited by it to its credit as
Custodian in the commercial banking side of the Custodian or in such other banks
or trust companies as it may in its discretion deem necessary
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or desirable; PROVIDED, HOWEVER, that every such bank or trust company shall be
qualified to act as a custodian under the Investment Company Act of 1940 and
that each such bank or trust company and the funds to be deposited with each
such bank or trust company shall be approved by vote of a majority of the
Trustees of the Trust. Such funds shall be deposited by the Custodian in its
capacity as Custodian and shall be withdrawable by the Custodian only in that
capacity.
E. PAYMENT FOR PORTFOLIO SHARES. The Custodian shall receive
from the distributor of each Portfolio's Portfolio Shares or from the transfer
agent of the Trust and deposit into each Portfolio's account such payments as
are received for Portfolio Shares of each Portfolio issued or sold from time to
time by such Portfolio. The Custodian will provide timely notification to each
Portfolio and the transfer agent of any receipt by it of cash payments for
Portfolio Shares of such Portfolio.
F. AVAILABILITY OF FEDERAL FUNDS. Upon mutual agreement
between each Portfolio and the Custodian, the Custodian shall, upon the receipt
of Proper Instructions and in accordance with the agreed deadlines, which may be
continuing instructions when deemed appropriate by the parties, make federal
funds available to each Portfolio as of specified times agreed upon from time to
time by such Portfolio and the Custodian in the amount of checks received in
payment for Portfolio Shares of each Portfolio which are deposited into such
Portfolio's account.
G. COLLECTION OF INCOME. The Custodian shall collect on a
timely and reasonable basis all income and other payments with respect to
registered securities held hereunder to which each Portfolio shall be entitled
either by law or pursuant to custom in the securities business and shall collect
on a timely and reasonable basis all income and other payments with respect to
bearer securities if, on the date of payment by the issuer, such securities are
held by the Custodian or agent thereof and shall credit such income, as
collected, to such Portfolio's Custodian account. Without limiting the
generality of the foregoing, the Custodian shall detach and present for payment
all coupons and other income items requiring presentation as and when they
become due and shall collect interest when due on securities held hereunder.
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The Custodian's obligations under this Section II.G. shall be to take all
reasonable and customary steps to collect such income and payments, and the
Custodian shall bear no responsibility for its failure to make collections
beyond the exercise of such reasonable and customary steps.
H. PAYMENT OF PORTFOLIO MONEYS. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out moneys of a Portfolio in accordance
with its usual and customary business practice, in the following cases only:
(1) Upon the purchase of securities for the account of a Portfolio
but only (a) against the delivery of such securities to the
Custodian (or any bank, banking firm or trust company doing
business in the United States or abroad which is qualified
under the Investment Company Act of 1940, as amended, to act
as custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of such
Portfolio or in the name of a nominee of the Custodian
referred to in Section C of Article II hereof or in proper
form for transfer; (b) in the case of a purchase effected
through a Securities System, in accordance with the conditions
set forth in Section L of Article II hereof, or (c) in the
case of repurchase agreements, (i) against delivery of
securities either in certificate form or through an entry
crediting the Custodian's account at the Federal Reserve Bank
with such securities, or (ii) against delivery of the receipt
evidencing purchase by the Portfolio of securities owned by
the Custodian along with written evidence of the agreement by
the Custodian to repurchase such securities from the
Portfolio;
(2) In connection with conversion, exchange or surrender of
securities owned by a Portfolio as set forth in Section B of
Article II hereof;
(3) For the redemption or repurchase of Portfolio Shares as set
forth in Section J of Article II hereof;
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(4) For the payment of any expense or liability incurred by a
Portfolio, including but not limited to the following payments
for the accounts of such Portfolio: interest, taxes,
management, administration, accounting, transfer agent and
legal fees, and operating expenses of such Portfolio whether
or not such expenses are to be in whole or in part capitalized
or treated as deferred expenses;
(5) For the payment of any dividends declared pursuant to the
governing documents of a Portfolio; and
(6) For any other proper corporate purposes, BUT ONLY upon receipt
of, in addition to Proper Instructions, a notification signed
by two officers of the Trust and certified by its Secretary or
an Assistant Secretary of the Trust, specifying the amount of
such payment, setting forth the purpose of which such payment
is to be made, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such payment
is to be made.
I. LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES
PURCHASED. In any and every case where payment for purchase of securities for
the account of a Portfolio is made by the Custodian in advance of receipt of the
securities purchased in the absence of specific written instructions from such
Portfolio to so pay in advance, the Custodian shall be absolutely liable to such
Portfolio for such securities to the same extent as if the securities had been
received by the Custodian.
J. PAYMENTS FOR REPURCHASES OR REDEMPTIONS OF PORTFOLIO SHARES
OF THE TRUST. The Custodian shall upon instruction from the distributor or
transfer agent deposit into the account of the appropriate Portfolio such
payments as are received for Shares of that Portfolio issued or sold from time
to time by the Portfolio. The Custodian will provide timely notification
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to the Portfolio and the transfer agent of any receipt by it of payments for
Shares of such Portfolio.
From such funds as may be available for the purpose but
subject to the limitations of the Trust Instrument and any applicable votes of
the Board of Trustees of the Trust pursuant thereto, the Custodian shall, upon
receipt of Proper Instructions from the transfer agent, make funds available for
payment to holders of Shares who have delivered to the transfer agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares of a Portfolio, the Custodian is authorized upon receipt
of instructions from the transfer agent to wire funds to the transfer agent for
payment by the transfer agent or through a commercial bank designated by the
redeeming shareholders. In connection with the redemption or repurchase of
Shares of the Portfolio, the Custodian shall honor checks drawn on the Custodian
by a holder of Shares, which checks have been furnished by the Trust to the
holder of Shares, when presented to the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time between
the Trust and the Custodian.
K. APPOINTMENT OF AGENTS. Subject to prior approval by the
Board of Trustees of the Trust, the Custodian may at any time appoint any other
bank or trust company which is itself qualified under the Investment Company Act
of 1940, as amended, to act as a custodian, as its agent to carry out such of
the provisions of this Article II as the Custodian may from time to time direct.
L. DEPOSIT OF PORTFOLIO ASSETS IN A SECURITIES SYSTEMS. The
Custodian may deposit and/or maintain securities owned by each Portfolio in a
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S. Department of
Treasury and certain federal agencies, collectively referred to herein as a
"Securities Systems" in accordance with applicable Federal Reserve Board and
Securities and Exchange Commission rules and regulations, if any, and subject to
the following provisions:
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(1) The Custodian may keep securities of each Portfolio in a
Securities System provided that such securities are
represented in an account (the "Account") of the Custodian in
a Securities System which shall not include any assets of the
Custodian other than assets held as a fiduciary, custodian, or
otherwise for customers;
(2) The records of the Custodian with respect to securities of
each Portfolio which are maintained in its Securities System
shall identify by book-entry those securities belonging to
each Portfolio;
(3) The Custodian shall pay for securities purchased for the
account of each Portfolio upon (i) receipt of advices from a
Securities System that such securities have been transferred
to the Account, and (ii) the making of an entry on the records
of the Custodian to reflect such payment and transfer for the
account of each Portfolio. The Custodian shall transfer
securities sold for the account of each Portfolio upon (i)
receipt of advices from a Securities System that payment for
such securities has been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of such
Portfolio. Copies of all advices from its Securities System of
transfers of securities for the account of each Portfolio
shall be maintained for such Portfolio by the Custodian and be
provided to such Portfolio at its request. The Custodian shall
furnish each Portfolio confirmation of each transfer to or
from the account of such Portfolio in the form of copies of
daily transaction advices reflecting each day's transactions
in its Securities System for the account of such Portfolio on
the next business day, which daily transaction advices may be
provided by electronic means;
(4) The Custodian shall have received the initial or annual
certificate, as the case may be, required by Article X hereof;
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(5) The Custodian shall provide each Portfolio with any report
obtained by the Custodian on its Securities System's
accounting system, internal accounting control and procedures
for safeguarding securities deposited in its Securities
System;
(6) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to each Portfolio for any loss
or damage to such Portfolio resulting from use of its
Securities System by reason of any acts of negligence,
misfeasance or misconduct of the Custodian or of any of its
employees or from any failure of the Custodian or any such
agent to make reasonable efforts to enforce effectively such
rights as it may have against a Securities System; at the
election of each Portfolio, it shall be entitled to be
subrogated to the rights of the Custodian with respect to any
claim against a Securities System or any other person which
the Custodian may have as a consequence of any such loss or
damage if and to the extent that a Portfolio has not been made
whole for any such loss or damage.
M. OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian
shall execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with receipt of income or other payments
with respect to securities of each Portfolio held by it and in connection with
transfers of securities.
N. PROXIES. The Custodian shall, with respect to the
securities held by it hereunder, cause to be promptly executed by the registered
holder of such securities, if the securities are registered otherwise than in
the name of a Portfolio, all proxies, without indication of the manner in which
such proxies are to be voted, and shall promptly deliver to the Adviser such
proxies, all proxy soliciting materials and all notices relating to such
securities.
O. COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. The
Custodian shall transmit promptly to the Adviser all written information
(including, without limitation, pendency
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of calls and maturities of securities and expirations of rights in connection
therewith) received by the Custodian from issuers of the securities being held
for such Portfolio.
(1) Notwithstanding any provision hereunder to the contrary, with
respect to Securities which possess so-called put options or
similar characteristics which grant the Trust the option to
redeem such Securities prior to their maturity date (the "Put
Option Securities"), including, but not limited to, so-called
put bonds, the Custodian shall not have any liability with
respect to the exercise or non-exercise of any such Put
Option, except that:
(a) With respect to put options which are exercisable
semiannually or less frequently than semiannually,
and where such Put Option Security is actually
delivered to the Custodian not less than fifteen
business days prior to the put option exercise date,
the Custodian will use its best efforts to notify the
Trust and the Adviser of such put options where
correct and timely notification is published in the
publications or services (the "Notification Sources")
the Custodian routinely uses for this purpose, or as
to which the Custodian receives timely notice from
the Trust;
(b) Once notified, the Trust must direct the exercise or
non-exercise of such put option by written instrument
delivered to the Custodian not less than five
business days prior to the put option exercise date;
(c) For the purposes of this Section O(1)(a), a "business
day" is a day on which the Custodian is open for
business under the laws of the State of New York; the
Notification Sources include, but are not limited to
THE WALL STREET JOURNAL and/or Depository Trust
Company of New York. The Custodian reserves the right
to utilize other Notification Sources or discontinue
any of the aforementioned Notification Sources at any
time and without notice. The Custodian will not
notify the Trust of put options exercisable more
frequently than semiannually.
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(2) With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Adviser all written information
received by the Custodian from issuers of the securities whose
tender or exchange is sought and from the party (or his
agents) making the tender or exchange offer. If the Adviser
desires to take action with respect to any tender offer,
exchange offer or any other similar transaction, the Adviser
shall notify the Custodian at least three business days prior
to the date on which the Custodian is to take such action.
P. PROPER INSTRUCTIONS. "Proper Instructions" as used
throughout this Article II means a writing signed or initialed by one or more
person or persons and in the manner as the Trustees, the Adviser or the transfer
agent, as the case may be, shall have authorized from time to time. Each such
writing shall set forth the transaction involved, including a specific statement
of the purpose of which such action is requested. The Custodian may also accept
and rely on instructions transmitted by the Trust or the Trust's authorized
agent including the Adviser, whether given orally, by telephone, cable or telex,
facsimile transmission or other electronic means which the Custodian reasonably
believes to be genuine. Oral instructions will be considered Proper Instructions
if the Custodian believes them to have been given by a person authorized to give
such instructions with respect to the transaction involved. The Trust and the
Adviser shall cause all oral instructions to be confirmed in writing. Written
confirmation of oral instructions shall in no way affect any action the
Custodian takes in reliance upon the oral instructions. Upon receipt of a
certificate of the Secretary or an Assistant Secretary as to the authorization
by the Trustees of the Trust accompanied by a detailed description of procedures
approved by the Trustees, "Proper Instructions" may include communications
effected directly between electromechanical or electronic devices provided that
the Trustees and the Custodian agree that such procedures afford adequate
safeguards for each Portfolio's assets.
Q. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. The Custodian
may in its discretion, without express authority from each Portfolio:
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(1) Make payments to itself or others for minor expenses of
handling securities or other similar items relating to its
duties under this Agreement, provided that all such payments
shall be accounted for to each Portfolio, such expenses shall
include, but not be limited to postage, shipping, courier,
wire transfers, expenses to enforce any obligation of any
agent, sub-custodian or Securities System and other
out-of-pocket expenses not assumed by the Custodian pursuant
to this Agreement;
(2) Surrender securities in temporary form in exchange for
securities in definitive form;
(3) Endorse for collection, in the name of each Portfolio, checks,
drafts and other negotiable instruments; and
(4) In general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of each Portfolio except as otherwise directed by the Board of
Trustees of the Trust.
R. EVIDENCE OF AUTHORITY. The Custodian shall be protected in
acting upon any Proper Instructions whether oral or in writing, and any notice,
request, consent, certificate or other instrument or paper believed by it to be
genuine and to have been properly executed by or on behalf of a Portfolio. The
Custodian may receive and accept a certificate copy of a vote of the Board of
Trustees of the Trust as conclusive evidence (a) of the authority of any person
to act in accordance with such vote, or (b) of any determination or of any
action by the Board of Trustees pursuant to the Trust Instrument as described in
such vote, and such vote may be considered as in full force and effect until
receipt by the Custodian of written notice to the contrary.
S. 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,
or any securities received by it on behalf of any
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Portfolio until the Custodian actually receives and collects such money or
securities directly or by the final crediting of the Account representing the
Portfolio's interest in a Securities System, or a subcustodian.
T. SEGREGATED ACCOUNTS. The Custodian shall upon receipt of
Proper Instructions establish and maintain a segregated account or accounts for
and on behalf of a Portfolio, into which account or accounts may be transferred
cash and/or securities, including securities maintained in an account by the
Custodian in a Securities System or with a subcustodian, (i) in accordance with
the provisions of any agreement among the Trust, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD (or any
futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or Commodity Futures Trading
Commission or any registered contract market) or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by such Portfolio, (ii) for purposes of segregating cash or
government securities in connection with options purchased, sold or written by
such Portfolio or commodity futures contracts or options thereon purchased of
sold by such Portfolio, (iii) for the purposes of compliance by such Portfolio
with the procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange Commission
relating to the maintenance of segregated accounts by registered investment
companies, and (iv) for other corporate purposes.
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT AND CALCULATION OF NET
ASSET VALUE AND NET INCOME. The Custodian shall cooperate with and supply
necessary information to the entity or entities appointed by the Trustees to
keep the books of account of each Portfolio, compute the net asset value per
share of the outstanding shares of each Portfolio and compute the daily net
income of each Portfolio.
IV. RECORDS. The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of each Portfolio under the Investment Company Act of 1940,
including, but not limited to Section
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31 thereof and Rules 31a-1 and 31a-2 thereunder, applicable federal and state
tax laws and any other law or administrative rules or procedures which may be
applicable to each Portfolio. All such records shall be available to each
Portfolio and shall at all times during the regular business hours of the
Custodian be open for inspection by duly authorized officers, employees or
agents of each Portfolio and employees and agents of the Securities and Exchange
Commission. The Custodian shall, at each Portfolio's request, supply such
Portfolio with a tabulation of securities owned by such Portfolio and held by
the Custodian and shall, when requested to do so by a Portfolio and for such
compensation as shall be agreed upon between such Portfolio and the Custodian,
include certificate numbers in such tabulations.
V. OPINION OF TRUST'S INDEPENDENT PUBLIC ACCOUNTANTS. The Custodian shall take
all reasonable action, as the Trust may from time to time request, to obtain
from year to year favorable opinions from the Trust's independent public
accountants with respect to its activities hereunder in connection with the
preparation of the Trust's Form N-1A and the Trust's Form N-SAR or other annual
reports to the Securities and Exchange Commission and with respect to any other
requirements of such Commission.
VI. REPORTS TO EACH PORTFOLIO BY INDEPENDENT PUBLIC ACCOUNTANTS. The Custodian
shall provide each Portfolio, at such times as each Portfolio may reasonably
require and at the Portfolio's expenses, with reports by independent public
accountants on the accounting system, internal accounting control and procedures
for safeguarding securities, including securities deposited and/or maintained in
a Securities System, relating to the services provided by the Custodian under
this Agreement; such reports, which shall be of sufficient scope and in
sufficient detail, as may reasonably be required by each Portfolio, to provide
reasonable assurance that any material inadequacies disclosed by such
examination, and, if there are no such inadequacies, shall so state.
VII. COMPENSATION OF CUSTODIAN. The Custodian shall be entitled to reasonable
compensation for its services as Custodian, as set forth in the Supplements to
this Agreement.
VIII. RESPONSIBILITY OF CUSTODIAN. The Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received by it
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or delivered by it pursuant to this Agreement and shall be held harmless in
acting upon any notice, request, consent, certificate or other instrument
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Trust) on all matters, and shall
be without liability for any action taken or omitted by it in good faith in
accordance with such advice. Notwithstanding the foregoing, the responsibility
of the Custodian with respect to redemptions effected by check may be set forth
in a separate agreement entered into between the Custodian, a Portfolio and the
Adviser.
In carrying out the provisions of this Agreement the Custodian
shall not be held liable for any act or failure to act which shall constitute
the exercise of reasonable care, or is in accordance with industry standards and
practice. Each Portfolio shall indemnify the Custodian and hold it harmless from
and against all claims, liabilities, and expenses (including attorneys' fees)
which the Custodian may suffer or incur on account of being Custodian hereunder
except such claims, liabilities and expenses arising from the Custodian's own
acts or omissions to act which shall fail to meet the foregoing standard of
care.
If a Portfolio requires the Custodian to take any action with
respect to securities, which action involves the payment of money or which
action may, in the opinion of the Custodian, result in the Custodian or its
nominee assigned to such Portfolio being liable for the payment of money or
incurring liability of some other form, such Portfolio, as a prerequisite to
requiring the Custodian to take such action, shall provide indemnity to the
Custodian in an amount and form satisfactory to it.
If a Portfolio requires the Custodian to advance cash or
securities for any purpose or in the event that the Custodian or its nominee
shall incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Agreement, except such as
may arise from the Custodian's own acts or omissions to act in the absence of
reasonable care and in a manner that is not consistent with industry standards
and
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practice, any property at any time held for the account of such Portfolio shall
be security therefor and should such Portfolio fail to repay the Custodian
promptly, the Custodian shall be entitled to utilize available cash and to
dispose of such Portfolio's assets to the extent necessary to obtain
reimbursement.
IX. FUNDS TRANSFERS. For the purposes of this Section IX, "funds transfer" shall
mean a series of transactions, beginning with a payment order of an originator
made for the purpose of making payment to the beneficiary of such order (such
beneficiary is referred to as the "beneficiary") but does not include debit
transfer made through the automated clearing house system or transfers governed
by the Federal Electronic Funds Transfer Act and "payment order" shall mean an
instruction transmitted orally, electronically, or in writing to pay a fixed or
determinable amount to a beneficiary.
In accepting any payment order directing payment from the
account of a Portfolio to a beneficiary, the Custodian and the beneficiary's
bank may rely solely upon any account number or similar identifying number such
Portfolio has provided to identify (i) the beneficiary, (ii) the beneficiary's
bank, or (iii) an intermediary bank to be used in executing such payment order.
A Portfolio shall be required to pay the Custodian and the Custodian is
authorized to charge the account of such Portfolio for any funds transfer made
by the Custodian at the direction of such Portfolio utilizing any such
identifying numbers even where their use may result in a person other than the
beneficiary being paid or the transfer of funds to a bank other than the
beneficiary's bank or an intermediary bank other than that intended. In sending
any payment order the Custodian may send only the account number (or similar
identifying number) and the bank identification number provided.
When the Custodian receives a payment order to which a
Portfolio is the beneficiary it may credit the proceeds of that order solely on
the basis of the account number (or similar identifying number) contained in
such payment order.
If any payment order is transmitted through any funds transfer
system including, but not limited to the Clearing House Interbank Payment System
(CHIPS) or the automated
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clearing house system (ACH), a Portfolio shall be subject to the rules of such
funds transfer system in effect at the time that such transfer is made. Any
provisional credit granted on any ACH credit entry may be reversed by the
Custodian if final settlement does not occur.
Should the Custodian be required to pay a Portfolio any
interest in connection with a payment order (whether as the originator or the
beneficiary) such interest shall be computed based on the Rules on Interbank
Compensation then in effect in The New York Clearing House Association.
In executing any payment order the Custodian may use the
services of correspondent and intermediary banks, funds transfer systems,
telecommunication companies and other entities of similar purpose. Such entities
shall not be deemed the Custodian's agents, and the Custodian will not be
responsible for their acts or omissions with regard to any payment orders in the
absence of the exercise of reasonable care as is consistent with industry
standards and practice on the part of the Custodian.
X. EFFECTIVE PERIOD - TERMINATION AND AMENDMENT.
(a) Subject to prior termination as provided in paragraph (d)
of this Section X, this Agreement shall continue in force for two (2) years from
the date hereof and indefinitely thereafter, but only so long as the continuance
shall be specifically approved at least annually by vote of the Trust's Board of
Trustees or by vote of a majority of the outstanding voting securities of the
Trust;
(b) This Agreement may be modified by mutual consent;
(c) In addition to the requirements of sub-paragraph (a) of
this Section X, the terms of any continuance or modification of the Agreement
must have been approved by the vote of a majority of those Trustees of the Trust
who are not parties to such Agreement or interested persons of any such party,
cast in person at a meeting called for the purpose of voting on such approval;
and
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(d) Either party hereto may, at any time, on sixty (60) days'
prior written notice to the other, terminate this Agreement, without payment of
any penalty, provided however that the Trust shall only do so by action of its
Board of Trustees, or by vote of a majority of its outstanding voting
securities. This Agreement shall terminate automatically in the event of its
assignment.
The Custodian shall receive an initial certificate from the
Trust that the Trustees of the Trust have approved the initial use of a
particular Securities System and an annual certificate reporting that the
Trustees, as required by Rule 17f-4 under the Investment Company Act of 1940, as
amended, have reviewed the use by each Portfolio of such Securities System;
further the Trust shall not amend or terminate the Agreement in contravention of
any applicable federal or state regulations, or any provision of the Trust
Instrument; and the Trust may at any time by action of its Trustees (i)
substitute another bank or trust company for the Custodian by giving notice as
described above to the Custodian, or (ii) immediately terminate this Agreement
in the event of the appointment of a conservator or receiver for the Custodian
by the appropriate banking authorities or upon the happening of a like event at
the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Agreement, the Trust shall pay to the
Custodian such compensation as may be due as of the date of such termination and
shall likewise reimburse the Custodian for its costs, expenses and
disbursements, including any costs, expenses and disbursements incurred in
performing the obligations set forth in Section XI hereof.
If this Agreement is terminated with respect to any Portfolio,
it shall nonetheless remain in effect with respect to any remaining Portfolio.
XI. SUCCESSOR CUSTODIAN. If a successor custodian is appointed by the Trustees
of the Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities and other assets of each Portfolio then held by it
hereunder. The Custodian shall also deliver to such successor
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custodian copies of such books and records relating to each Portfolio including
but not limited to the records required to be maintained by the Custodian in
accordance with the Investment Company Act of 1940.
If no such successor custodian is appointed, the Custodian
shall, in like manner, upon receipt of a certified copy of a vote of the
Trustees of the Trust, deliver at the office of the Custodian such securities,
funds and other properties in accordance with such vote.
In the event that no written order designating a successor
custodian or certified copy of a vote of the Board of Trustees shall have been
delivered to the Custodian on or before the date when such termination shall
become effective, then the Custodian shall have the right to deliver to a bank
or trust company of its own selection, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not less than
$25,000,000, all securities, funds and other properties held by the Custodian
and all instruments held by the Custodian relative thereto and all other
property held by it under this Agreement. Thereafter, such bank or trust company
shall be the successor of the Custodian under this Agreement.
In the event that securities, funds and other properties
remain in the possession of the Custodian after the date of termination hereof
owing to failure of the Trust to procure the certified copy of a vote of the
Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect.
XII. INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the operation of
this Agreement, the Custodian and the Trust may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in writing
signed by both parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of the Trust Instrument of the Trust. No
interpretive
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or additional provisions made as provided in the preceding sentence shall be
deemed to be an amendment to this Agreement.
XIII. TRUSTEES. All references to actions of or by Trustees of the Trust shall
require action by such Trustees acting as a Board or formally constituted group
and not individually.
XIV. APPLICABLE LAW. This Agreement shall be construed and the provision thereof
interpreted under and in accordance with the laws of New York. The name
"Whitehall Funds Trust" is the designation by the Trustees under the Trust
Instrument, dated August 25, 1994, as amended, and all persons dealing with the
Trust must look solely to the Trust property for the enforcement of any claims
against the Trust as neither any or all of the Trustees, officers, or agents,
nor any or all of the shareholders assume(s) any personal liability for
obligations entered into on behalf of the Trust.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
WHITEHALL FUNDS TRUST
By:/s/ Xxxxxx X. Xxxxxxx
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Title: President
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EXHIBIT A
List of Portfolios
as of October 26, 2000
Whitehall Enhanced Index Fund
Whitehall Growth Fund
Whitehall Growth and Income Fund
Whitehall High Yield Fund
Whitehall Income Fund
Whitehall Money Market Fund