Exhibit (g)(20)
MUTUAL FUND CUSTODY AND
SERVICES AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
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DEFINITIONS....................................................................2
ARTICLE I - CUSTODY PROVISIONS.................................................4
1. APPOINTMENT OF CUSTODIAN.............................................4
2. CUSTODY OF CASH AND SECURITIES.......................................4
3. SETTLEMENT OF SERIES TRANSACTIONS....................................8
4. LENDING OF SECURITIES................................................8
5. PERSONS HAVING ACCESS TO ASSETS OF THE SERIES........................8
6. STANDARD OF CARE; SCOPE OF CUSTODIAL RESPONSIBILITIES................9
7. APPOINTMENT OF SUBCUSTODIANS........................................11
8. OVERDRAFT FACILITY AND SECURITY FOR PAYMENT.........................11
9. TAX OBLIGATIONS.....................................................12
ARTICLE II - FOREIGN CUSTODY MANAGER SERVICES.................................12
1. DELEGATION..........................................................12
2. CHANGES TO APPENDIX C...............................................12
3. REPORTS TO BOARD....................................................12
4. MONITORING SYSTEM...................................................13
5. STANDARD OF CARE....................................................13
6. USE OF SECURITIES DEPOSITORIES......................................13
ARTICLE III - INFORMATION SERVICES............................................13
1. RISK ANALYSIS.......................................................13
2. MONITORING OF SECURITIES DEPOSITORIES...............................13
3. USE OF AGENTS.......................................................13
4. EXERCISE OF REASONABLE CARE.........................................13
5. LIABILITIES AND WARRANTIES..........................................14
ARTICLE IV - GENERAL PROVISIONS...............................................14
1. COMPENSATION........................................................14
2. INSOLVENCY OF FOREIGN CUSTODIANS....................................14
3. LIABILITY FOR DEPOSITORIES..........................................14
4. DAMAGES.............................................................14
5. INDEMNIFICATION; LIABILITY OF THE SERIES............................15
6. FORCE MAJEURE.......................................................15
7. TERMINATION.........................................................15
8. INSPECTION OF BOOKS AND RECORDS.....................................16
9. MISCELLANEOUS.......................................................16
APPENDIX A. AUTHORIZED PERSONS................................................19
APPENDIX B. FUND OFFICERS.....................................................20
APPENDIX C. SELECTED COUNTRIES................................................21
APPENDIX D. LIST OF FUNDS.....................................................22
EXHIBIT A. CUSTOMER IDENTIFICATION PROGRAM NOTICE.............................24
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MUTUAL FUND CUSTODY AND
SERVICES AGREEMENT
THIS AGREEMENT, effective as of the 29th day of April, 2005, and is
between THE RBB FUND, INC., (the "Fund") a corporation organized under the laws
of the State of Maryland having its principal office and place of business at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and MELLON TRUST OF NEW
ENGLAND, N.A., (the "Custodian") a national banking association with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Custodian (formerly known as Boston Safe Deposit and Trust
Company) has previously provided custody and related services to certain ▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇ Funds ("WPG");
WHEREAS, effective April 29, 2005, WPG was acquired by the Fund pursuant
to a Reorganization Agreement between WPG and the Fund;
WHEREAS, the Fund and the Custodian hereby wish to provide for the
continuation of services with respect to the former WPG funds;
WHEREAS, the Fund is authorized to issue shares in separate series with
each such series representing interests in a separate portfolio of securities
and other assets, and the Fund has made the Series listed on Appendix D subject
to this Agreement (each such series, together with all other series subsequently
established by the Fund and made subject to the Agreement in accordance with the
terms hereof, shall be referred to as a "Series" and collectively as the
"Series");
WHEREAS, the Fund and the Custodian desire to set forth their agreement
with respect to the custody of the Series' Securities and cash and the
processing of Securities transactions;
WHEREAS, the Board desires to delegate certain of its responsibilities for
performing the services set forth in paragraphs (c)(1), (c)(2) and (c)(3) of
Rule 17f-5 to the Custodian as a Foreign Custody Manager;
WHEREAS, the Custodian agrees to accept such delegation with respect to
Assets, including those held by Foreign Custodians in the Selected Countries as
set forth in jurisdictions listed on APPENDIX C as set forth in Article II; and
WHEREAS, the Custodian agrees to perform the function of a Primary
Custodian under Rule 17f-7;
NOW THEREFORE, the Fund and the Custodian agree as follows:
DEFINITIONS
The following words and phrases, unless the context requires otherwise,
shall have the following meanings:
1. "ACT": the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as amended from time to time.
2. "AGREEMENT": this agreement and any amendments.
3. "ASSETS": any of the Series' investments, including foreign currencies and
investments for which the primary market is outside the United States, and such
cash and cash equivalents as are reasonably necessary to effect the Series'
transactions in such investments.
4. "AUTHORIZED PERSON": the Chairman of the Fund's Board, its President, and any
Vice President, Secretary, Treasurer or any other person, whether or not any
such person is an officer or employee of the Fund, duly authorized by the Board
to add or delete jurisdictions pursuant to Article II and to give Instructions
on behalf of a Series which is listed in the Certificate annexed hereto as
APPENDIX A or such other Certificate as may be received by the Custodian from
time to time.
5. "BOARD": the Board of Managers (or the body authorized to exercise authority
similar to that of the board of directors of a corporation) of the Fund.
6. "BOOK-ENTRY SYSTEM": the Federal Reserve/Treasury book-entry system for
United States and federal agency Securities, its successor or successors and its
nominee or nominees.
7. "BUSINESS DAY": any day on which the Series, the Custodian, the Book-Entry
System and appropriate clearing corporation(s) are open for business.
8. "CERTIFICATE": 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 a Series by an
Authorized Person or Persons designated by the Board to issue a Certificate.
9. "ELIGIBLE SECURITIES DEPOSITORY": the meaning of the term set forth in Rule
17f-7(b)(1).
10. "FOREIGN CUSTODIAN": (a) a banking institution or trust company incorporated
or organized under the laws of a country other than the United States, that is
regulated as such by the country's government or an agency of the country's
government; (b) a majority-owned direct or indirect subsidiary of a U.S. Bank or
bank-holding company; or (c) any entity other than a Securities Depository with
respect to which exemptive or no-action relief has been granted by the
Securities and Exchange Commission. For the avoidance of doubt, the term
"Foreign Custodian" shall not include Euroclear,
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Clearstream, Bank One or any other transnational system for the central handling
of securities or equivalent book-entries regardless of whether or not such
entities or their service providers are acting in a custodial capacity with
respect to Assets, Securities or other property of the Series.
11. "FOREIGN CUSTODY MANAGER": the meaning set forth in Rule 17f-5(a)(3).
12. "INSTRUCTIONS": (i) all directions to the Custodian from an Authorized
Person pursuant to the terms of this Agreement; (ii) all directions by or on
behalf of the Fund to the Custodian in its corporate capacity (or any of its
affiliates) with respect to contracts for foreign exchange; (iii) all directions
by or on behalf of the Fund pursuant to an agreement with Custodian (or any of
its affiliates) with respect to benefit disbursement services or information or
transactional services provided via a web site sponsored by the Custodian (or
any of its affiliates) (e.g., the "Workbench web site") and (iv) all directions
by or on behalf of the Fund pursuant to any other agreement or procedure between
the Custodian (or any of its affiliates) and the Fund, if such agreement or
procedure specifically provides that authorized persons thereunder are deemed to
be authorized to give instructions under this Agreement. Instructions shall be
in writing, transmitted by first class mail, overnight delivery, private
courier, facsimile, or any other method, including electronic transmission
subject to the Custodian's practices, or any other method specifically agreed to
in writing by the Fund and Custodian, provided that the Custodian may, in its
discretion, accept oral directions and instructions from an Authorized Person
and may require confirmation in writing.
13. "PRIMARY CUSTODIAN": the meaning set forth in Rule 17f-7(b)(2).
14. "PROSPECTUS": a Series' current prospectus and statement of additional
information relating to the registration of the Shares under the Securities Act
of 1933, as amended.
15. "RISK ANALYSIS": the analysis required under Rule 17f-7(a)(1)(i)(A).
16. "RULES 17F-4, 17F-5 and 17F-7": such Rules as promulgated under Section
17(f) of the Act, as such rules (and any successor rules or regulations) may be
amended from time to time.
17. "SECURITY" or "SECURITIES": bonds, debentures, notes, stocks, shares,
evidences of indebtedness, and other securities, commodities, interests and
investments from time to time owned by the Series.
18. "SECURITIES DEPOSITORY": a system for the central handling of securities as
defined in Rule 17f-4.
19. "SELECTED COUNTRIES": the jurisdictions listed on APPENDIX C as such may be
amended from time to time in accordance with Article II.
20. "SHARES": shares of each Series, however designated.
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ARTICLE I. - CUSTODY PROVISIONS
1. APPOINTMENT OF CUSTODIAN. The Board appoints, and the Custodian accepts
appointment as custodian of all the Securities and monies at the time owned by
or in the possession of the Series during the period of this Agreement.
2. CUSTODY OF CASH AND SECURITIES.
a. RECEIPT AND HOLDING OF ASSETS. The Series will deliver or cause to be
delivered to the Custodian all Securities and monies owned by it at any time
during the period of this Custody Agreement. The Custodian will not be
responsible for such Securities and monies until actually received. The Board
specifically authorizes the Custodian to hold Securities, Assets or other
property of the Series with any domestic subcustodian, or Securities Depository,
and Foreign Custodians or Eligible Securities Depositories in the Selected
Countries as provided in Article II. Securities and monies of the Series
deposited in a Securities Depository or Eligible Securities Depositories will be
reflected in an account or accounts which include only assets held by the
Custodian or a Foreign Custodian for its customers.
b. DISBURSEMENTS OF CASH AND DELIVERY OF SECURITIES. The Custodian shall
disburse cash or deliver out Securities only for the purposes listed below.
Instructions must specify or evidence the purpose for which any transaction is
to be made and the Series shall be solely responsible to assure that
Instructions are in accord with any limitations or restrictions applicable to
the Series
(1) In payment for Securities purchased for the applicable Series;
(2) In payment of dividends or distributions with respect to Shares;
(3) In payment for Shares which have been redeemed by the applicable
Series;
(4) In payment of taxes;
(5) When Securities are sold, called, redeemed, retired, or
otherwise become payable;
(6) In exchange for or upon conversion into other securities alone
or other securities and cash pursuant to any plan or merger, consolidation,
reorganization, recapitalization or readjustment;
(7) Upon conversion of Securities pursuant to their terms into other
securities;
(8) Upon exercise of subscription, purchase or other similar rights
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represented by Securities;
(9) For the payment of interest, management or supervisory fees,
distributions or operating expenses;
(10) In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the applicable Series;
(11) In connection with any borrowings by the applicable Series or
short sales of securities requiring a pledge of Securities, but only against
receipt of amounts borrowed;
(12) In connection with any loans, but only against receipt of
adequate collateral as specified in Instructions which shall reflect any
restrictions applicable to the Series.
(13) For the purpose of redeeming Shares of the capital stock of the
applicable Series and the delivery to, or the crediting to the account of, the
Custodian or the applicable Series' transfer agent, such Shares to be purchased
or redeemed;
(14) For the purpose of redeeming in kind Shares of the applicable
Series against delivery to the Custodian, its Subcustodian or the Customer
Series' transfer agent of such Shares to be so redeemed;
(15) For delivery in accordance with the provisions of any agreement
among the Fund, 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 Dealers, Inc. ("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 Fund. The Custodian will act only in accordance with
Instructions in the delivery of Securities to be held in escrow and will have no
responsibility or liability for any such Securities which are not returned
promptly when due other than to make proper requests for such return;
(16) For spot or forward foreign exchange transactions to facilitate
security trading, receipt of income from Securities or related transactions;
(17) Upon the termination of this Agreement; and
(18) For other proper purposes as may be specified in Instructions
issued by an officer of the Fund which shall include a statement of the purpose
for which the delivery or payment is to be made, the amount of the payment or
specific Securities to be delivered, the name of the person or persons to whom
delivery or payment is to be made, and a Certificate stating that the purpose is
a proper purpose under the instruments governing the Fund.
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c. ACTIONS WHICH MAY BE TAKEN WITHOUT INSTRUCTIONS. Unless an Instruction
to the contrary is received, the Custodian shall:
(1) Collect all income due or payable, provided that the Custodian
shall not be responsible for the failure to receive payment of (or late payment
of) distributions or other payments with respect to Securities or other property
held in the account;
(2) Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or otherwise become
payable. Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Series for monitoring or ascertaining any call, redemption
or retirement dates with respect to put bonds or similar instruments which are
owned by the Series and held by the Custodian or its nominees where such dates
are not published in sources routinely used by the Custodian. Nor shall the
Custodian have any responsibility or liability to the Series for any loss by the
Series for any missed payments or other defaults resulting therefrom, unless the
Custodian received timely notification from the Series specifying the time,
place and manner for the presentment of any such put bond owned by the Series
and held by the Custodian or its nominee. The Custodian shall not be responsible
and assumes no liability for the accuracy or completeness of any notification
the Custodian may furnish to the Series with respect to put bonds or similar
instruments;
(3) Surrender Securities in temporary form for definitive
Securities;
(4) Hold directly, or through a Securities Depository with respect
to Securities therein deposited, for the account of the applicable Series all
rights and similar Securities issued with respect to any Securities held by the
Custodian hereunder for that Series;
(5) Submit or cause to be submitted to the applicable Series or its
investment advisor as designated by the Fund information actually received by
the Custodian regarding ownership rights pertaining to property held for the
applicable Series;
(6) Deliver or cause to be delivered any Securities held for the
applicable Series 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;
(7) Deliver or cause to be delivered any Securities held for the
applicable Series 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 such certificates of deposit, interim receipts
or other instruments or documents as may be issued to it to evidence such
delivery;
(8) Make or cause to be made such transfers or exchanges of the
assets
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specifically allocated to the applicable Series and take such other steps as
shall be stated in Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the applicable Series;
(9) Deliver Securities upon the receipt of payment in connection
with any repurchase agreement related to such Securities entered into by the
Series;
(10) Deliver Securities owned by the applicable Series to the issuer
thereof or its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such case the cash or
other consideration is to be delivered to the Custodian. Notwithstanding the
foregoing, the Custodian shall have no responsibility to the Series for
monitoring or ascertaining any call, redemption or retirement dates with respect
to the put bonds or similar instruments which are owned by the Series and held
by the Custodian or its nominee where such dates are not published in sources
routinely used by the Custodian. Nor shall the Custodian have any responsibility
or liability to the Series for any loss by the Series for any missed payment or
other default resulting therefrom unless the Custodian received timely
notification from the Series specifying the time, place and manner for the
presentment of any such put bond owned by the Series and held by the Custodian
or its nominee. The Custodian shall not be responsible and assumes no liability
to the Series for the accuracy or completeness of any notification the Custodian
may furnish to the applicable Series with respect to put bonds or similar
investments;
(11) Endorse and collect all checks, drafts or other orders for the
payment of money received by the Custodian for the account of the applicable
Series; and
(12) Execute any and all documents, agreements or other instruments
as may be necessary or desirable for the accomplishment of the purposes of this
Agreement.
d. CONFIRMATION AND STATEMENTS. Promptly after the close of business on
each day, the Custodian shall furnish each Series with confirmations and a
summary of all transfers to or from the account of the Series during the day.
Where securities purchased by a Series 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 a Securities Depository, the Custodian shall
by book-entry or otherwise identify the quantity of those securities belonging
to that Series. At least monthly, the Custodian shall furnish each Series with a
detailed statement of the Securities and monies held for the Series under this
Custody Agreement.
e. REGISTRATION OF SECURITIES. The Custodian is authorized to hold all
Securities, Assets, or other property of each Series in nominee name, in bearer
form or in book-entry form. The Custodian may register any Securities, Assets or
other property of each Series in the name of the Fund or the Series, in the name
of the Custodian, any domestic subcustodian, or Foreign Custodian, in the name
of any duly appointed registered nominee of such entity, or in the name of a
Securities Depository or its
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successor or successors, or its nominee or nominees. The Fund agrees to furnish
to the Custodian appropriate instruments to enable the Custodian to hold or
deliver in proper form for transfer, or to register in the name of its
registered nominee or in the name of a Securities Depository, any Securities
which it may hold for the account of the applicable Series and which may from
time to time be registered in the name of the Fund or the applicable Series.
f. SEGREGATED ACCOUNTS. Upon receipt of Instructions, the Custodian will,
from time to time establish segregated accounts on behalf of the applicable
Series to hold and deal with specified assets as shall be directed.
3. SETTLEMENT OF SERIES TRANSACTIONS.
a. CUSTOMARY PRACTICES. Settlement of transactions may be effected in
accordance with trading and processing practices customary in the jurisdiction
or market where the transaction occurs. The Fund acknowledges that this may, in
certain circumstances, require the delivery of cash or Securities (or other
property) without the concurrent receipt of Securities (or other property) or
cash. In such circumstances, the Custodian shall have no responsibility for
nonreceipt of payments (or late payment) or nondelivery of Securities or other
property (or late delivery) by the counterparty.
b. CONTRACTUAL INCOME. The Custodian shall credit the applicable Series,
in accordance with the Custodian's standard operating procedure, with income and
maturity proceeds on securities on contractual payment date net of any taxes or
upon actual receipt. To the extent the Custodian credits income on contractual
payment date, the Custodian may reverse such accounting entries to the
contractual payment date if the Custodian reasonably believes that such amount
will not be received.
c. CONTRACTUAL SETTLEMENT. The Custodian will attend to the settlement of
securities transactions in accordance with the Custodian's standard operating
procedure, on the basis of either contractual settlement date accounting or
actual settlement date accounting. To the extent the Custodian settles certain
securities transactions on the basis of contractual settlement date accounting,
the Custodian may reverse to the contractual settlement date any entry relating
to such contractual settlement if the Custodian reasonably believes that such
amount will not be received.
4. LENDING OF SECURITIES. The Custodian may lend the assets of the Series in
accordance with the terms and conditions of a separate securities lending
agreement, approved by the Fund.
5. PERSONS HAVING ACCESS TO ASSETS OF THE SERIES.
a. No trustee or agent of the Fund, and no officer, director, employee or
agent of the Fund's investment adviser, of any sub-investment adviser of the
Fund, or of the Fund's administrator, shall have physical access to the assets
of the Series held by the Custodian or be authorized or permitted to withdraw
any investments of the Series, nor
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shall the Custodian deliver any assets of the Series to any such person. No
officer, director, employee or agent of the Custodian who holds any similar
position with the Fund's investment adviser, with any sub-investment adviser of
the Fund or with the Fund's administrator shall have access to the assets of the
Series.
b. Nothing in this Section 5 shall prohibit any duly authorized officer,
employee or agent of the Fund, or any duly authorized officer, director,
employee or agent of the investment adviser, of any sub-investment adviser of
the Series or of the Series' administrator, from giving Instructions to the
Custodian or executing a Certificate so long as it does not result in delivery
of or access to assets of the Series prohibited by paragraph (a) of this Section
5.
6. STANDARD OF CARE; SCOPE OF CUSTODIAL RESPONSIBILITIES.
a. STANDARD OF CARE. Custodian shall be required to exercise reasonable
care with respect to its duties under this Agreement unless otherwise provided.
(1) Notwithstanding any other provision of this Custody Agreement,
the Custodian shall not 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 the negligence or willful misconduct of the
Custodian.
(2) The Custodian may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel to the Fund or of its own counsel,
at the expense of the Fund, and shall be fully protected with respect to
anything done or omitted by it in good faith in conformity with such advice or
opinion. The Fund will reimburse the Custodian for reasonable legal expenses,
provided that the Custodian receives the approval of the Fund, which approval
may not be unreasonably withheld.
b. SCOPE 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 acts or omissions of any agent appointed pursuant to
Instructions of the Fund or its investment advisor including, but not limited
to, any broker-dealer or other entity to hold any Securities or other property
of the Fund as collateral or otherwise pursuant to any investment strategy.
(2) The validity of the issue of any Securities purchased by the
Series, the legality of the purchase thereof, or the propriety of the amount
paid therefor;
(3) The legality of the sale of any Securities by the Series or the
propriety of the amount for which the same are sold;
(4) The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
(5) The legality of the redemption of any Shares, or the propriety
of the
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amount to be paid therefore
(6) The legality of the declaration or payment of any distribution
of the Series;
(7) The legality of any borrowing for temporary administrative or
emergency 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 Series until the Custodian actually receives and collects such
money.
d. AMOUNTS DUE FROM TRANSFER AGENT. The Custodian shall not be required to
effect collection of any amount due to the Series from the Series' transfer
agent nor be required to cause payment or distribution by such transfer agent of
any amount paid by the Custodian to the transfer agent.
e. COLLECTION WHERE PAYMENT REFUSED. The Custodian shall not be required
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 it shall be directed to take such action and
it shall be assured to its satisfaction of reimbursement of its related costs
and expenses.
f. 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 Series are such as may properly be held by the Series
under the provisions of its governing instruments or Prospectus.
g. RELIANCE ON INSTRUCTIONS. The Custodian shall be entitled to rely upon
any Instruction, notice or other instrument in writing received by the Custodian
and reasonably believed by the Custodian to be genuine and to be signed by an
officer or Authorized Person of the Series. Where the Custodian is issued
Instructions orally, the Series acknowledge that if written confirmation is
requested, the validity of the transactions or enforceability of the
transactions authorized by the Series shall not be affected if such confirmation
is not received or is contrary to oral Instructions given. The Custodian shall
be fully protected in acting in accordance with all such Instructions and in
failing to act in the absence thereof. The Custodian shall be under no duty to
question any direction of an Authorized Person with respect to the portion of
the account over which such Authorized Person has authority, to review any
property held in the account, to make any suggestions with respect to the
investment and reinvestment of the assets in the account, or to evaluate or
question the performance of any Authorized Person. The Custodian shall not be
responsible or liable for any diminution of value of any securities or other
property held by the Custodian or its subcustodians pursuant to Instructions. In
following Instructions, the Custodian shall be fully protected and shall not be
liable for the acts or omissions of any person or entity not selected or
retained by the Custodian in
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its sole discretion, including but not limited to, any broker-dealer or other
entity designed by the Fund or Authorized Person to hold property of the account
as collateral or otherwise pursuant to an investment strategy.
7. APPOINTMENT OF SUBCUSTODIANS. The Custodian is hereby authorized to appoint
one or more domestic subcustodians (which may be an affiliate of the Custodian)
to hold Securities and monies at any time owned by the Series. The Custodian is
also hereby authorized when acting pursuant to Instructions to: 1) place assets
with any Foreign Custodian located in a jurisdiction which is not a Selected
Country and with Euroclear, Clearstream, Banc One or any other transnational
depository; and 2) place assets with a broker or other agent as subcustodian in
connection with futures, options, short selling or other transactions. When
acting pursuant to such Instructions, the Custodian shall not be liable for the
acts or omissions of any subcustodian so appointed.
8. OVERDRAFT FACILITY AND SECURITY FOR PAYMENT. In the event that the Custodian
receives Instructions to make payments or transfers of monies on behalf of the
Series for which there would be, at the close of business on the date of such
payment or transfer, insufficient monies held by the Custodian on behalf of the
Series, the Custodian may, in its sole discretion, provide an overdraft (an
"Overdraft") to the Series in an amount sufficient to allow the completion of
such payment or transfer. Any Overdraft provided hereunder: (a) shall be payable
on the next Business Day, unless otherwise agreed by the Series and the
Custodian; and (b) shall accrue interest from the date of the Overdraft to the
date of payment in full by the Series at a rate agreed upon from time to time by
the Custodian and the Series or, in the absence of specific agreement, by such
rate as charged to other customers of Custodian under procedures uniformly
applied. The Custodian and the Series acknowledge that the purpose of such
Overdraft is to temporarily finance the purchase of Securities for prompt
delivery in accordance with the terms hereof, to meet unanticipated or unusual
redemptions, to allow the settlement of foreign exchange contracts or to meet
other unanticipated Series expenses. The Custodian shall promptly notify the
Series (an "Overdraft Notice") of any Overdraft. To secure payment of any
Overdraft and related interest and expenses, the Series hereby grants to the
Custodian a first priority security interest in and right of setoff against the
Securities and cash in the Series' account, including all income, substitutions
and proceeds, whether now owned or hereafter acquired (the "Collateral"), in the
full amount of such Overdraft, interest and expenses; provided that the Series
does not grant the Custodian a security interest in any Securities issued by an
affiliate of the Custodian (as defined in Section 23A of the Federal Reserve
Act). The Custodian and the Series intend that, as the securities intermediary
with respect to the Collateral, the Custodian's security interest shall
automatically be perfected when it attaches. Should the Series fail to pay
promptly any amounts owed hereunder, the Custodian shall be entitled to use
available cash in the Series' account and to liquidate Securities in the account
as necessary to meet the Series' obligations relating to such Overdraft,
interest and expenses. In any such case, and without limiting the foregoing, the
Custodian shall be entitled to take such other actions(s) or exercise such other
options, powers and rights as the Custodian now or hereafter has as a secured
creditor under the Massachusetts Uniform Commercial Code or any other applicable
law.
11
9. TAX OBLIGATIONS. For purposes of this Agreement, "Tax Obligations" shall mean
taxes, withholding, certification and reporting requirements, claims for
exemptions or refund, interest, penalties, additions to tax and other related
expenses. To the extent that the Custodian has received relevant and necessary
information with respect to the account, the Custodian shall perform the
following services with respect to Tax Obligations:
a. The Custodian shall file claims for exemptions or refunds with respect
to withheld foreign (non-U.S.) taxes in instances in which such claims are
appropriate;
b. The Custodian shall withhold appropriate amounts, as required by U.S.
tax laws, with respect to amounts received on behalf of nonresident aliens; and
c. The Custodian shall provide to the Fund or the Authorized Person such
information received by the Custodian which could, in the Custodian's reasonable
belief, assist the Fund or the Authorized Person in the submission of any
reports or returns with respect to Tax Obligations. The Fund shall inform the
Custodian in writing as to which party or parties shall receive information from
the Custodian.
The Custodian shall provide such other services with respect to Tax
Obligations, including preparation and filing of tax returns and reports and
payment of amounts due (to the extent funded), as requested by the Fund and
agreed to by the Custodian in writing. The Custodian shall have no independent
obligation to determine the existence of any information with respect to, or the
extent of, any Tax Obligations now or hereafter imposed on the Fund or the
account by any taxing authority. Except as specifically provided herein or
agreed to in writing by the Custodian, the Custodian shall have no obligations
or liability with respect to Tax Obligations, including, without limitation, any
obligation to file or submit returns or reports with any taxing authorities.
In making payments to service providers pursuant to Instructions, the Fund
acknowledges that the Custodian is acting as a paying agent and not as the
payor, for tax information reporting and withholding purposes.
ARTICLE II. - FOREIGN CUSTODY MANAGER SERVICES
1. DELEGATION. The Board delegates to, and the Custodian hereby agrees to accept
responsibility as the Fund's Foreign Custody Manager for selecting, contracting
with and monitoring Foreign Custodians in Selected Countries set forth in
Appendix C in accordance with Rule 17f-5(c).
2. CHANGES TO APPENDIX C. Appendix C may be amended by written agreement from
time to time to add or delete jurisdictions by written agreement signed by an
Authorized Person of the Fund and the Custodian, but the Custodian reserves the
right to delete jurisdictions upon reasonable notice to the Series.
3. REPORTS TO BOARD. Custodian shall provide written reports notifying the Board
of the placement of Assets with a particular Foreign Custodian and of any
material change in
12
a Series' foreign custody arrangements. Such reports shall be provided to the
Board quarterly, except as otherwise agreed by the Custodian and the Fund.
4. MONITORING SYSTEM. In each case in which the Custodian has exercised
delegated authority to place Assets with a Foreign Custodian, the Custodian
shall establish a system, to re-assess or re-evaluate selected Foreign
Custodians, at least annually in accordance with Rule 17f-5(c)(3).
5. STANDARD OF CARE. In exercising the delegated authority under this Article II
of the Agreement, the Custodian agrees to exercise reasonable care, prudence and
diligence such as a person having responsibility for the safekeeping of the
Assets would exercise in like circumstances. Contracts with Foreign Custodians
shall provide for reasonable care for Assets based on the standards applicable
to Foreign Custodians in the Selected Country. In making this determination, the
Custodian shall consider the provisions of Rule 17f-5(c)(2).
6. USE OF SECURITIES DEPOSITORIES. In exercising its delegated authority, the
Custodian may assume that the Series and its investment adviser have determined,
pursuant to Rule 17f-7, that the depository provides reasonable safeguards
against custody risks, if a Series decides to place and maintain foreign assets
with any Securities Depository as to which the Custodian has provided the Fund
on behalf of such Series with a Risk Analysis.
ARTICLE III. - INFORMATION SERVICES
1. RISK ANALYSIS. The Custodian will provide the Fund on behalf of the Series
with a Risk Analysis with respect to Securities Depositories operating in the
countries listed in Appendix C. If the Custodian is unable to provide a Risk
Analysis with respect to a particular Securities Depository, it will notify the
Fund on behalf of the Series. If a new Securities Depository commences operation
in one of the Appendix C countries, the Custodian will provide the Fund on
behalf of the Series with a Risk Analysis in a reasonably practicable time after
such Securities Depository becomes operational. If a new country is added to
Appendix C, the Custodian will provide the Fund on behalf of the Series with a
Risk Analysis with respect to each Securities Depository in that country within
a reasonably practicable time after the addition of the country to Appendix C.
2. MONITORING OF SECURITIES DEPOSITORIES. The Custodian will monitor the custody
risks associated with maintaining assets with each Securities Depository for
which it has provided the Fund on behalf of the Series with a Risk Analysis as
required under Rule 17f-7. The Custodian will promptly notify the Fund on behalf
of the Series or its investment adviser of any material change in these risks.
3. USE OF AGENTS. The Custodian may employ agents, including, but not limited to
Foreign Custodians, to perform its responsibilities under Sections 1 and 2
above.
4. EXERCISE OF REASONABLE CARE The Custodian will exercise reasonable care,
13
prudence, and diligence in performing its responsibilities under this Article
III. With respect to the Risk Analyses provided or monitoring performed by an
agent, the Custodian will exercise reasonable care in the selection of such
agent, and shall be entitled to rely upon information provided by agents so
selected in the performance of its duties and responsibilities under this
Article III.
5. LIABILITIES AND WARRANTIES. While the Custodian will take reasonable
precautions to ensure that information provided is accurate, the Custodian shall
have no liability with respect to information provided to it by third parties.
Due to the nature and source of information, and the necessity of relying on
various information sources, most of which are external to the Custodian, the
Custodian shall have no liability for direct or indirect use of such
information.
ARTICLE IV. - GENERAL PROVISIONS
1. COMPENSATION.
a. The Fund will compensate the Custodian for its services rendered under
this Agreement in accordance with the fees set forth in a separate Fee Schedule
which schedule may be modified by the Custodian upon not less than sixty days
prior written notice to the Fund.
b. The Custodian will ▇▇▇▇ the Fund as soon as practicable after the end
of each calendar month. The Fund will promptly pay to the Custodian the amount
of such billing.
c. If not paid directly or timely by the Fund, the Custodian may charge
against assets held on behalf of the Series compensation and any expenses
incurred by the Custodian in the performance of its duties pursuant to this
Agreement. The Custodian shall also be entitled to charge against assets of the
Series the amount of any loss, damage, liability or expense incurred with
respect to the Series, including counsel fees, for which it shall be entitled to
reimbursement under the provisions of this Agreement. The expenses which the
Custodian may charge include, but are not limited to, the expenses of domestic
subcustodians and Foreign Custodians incurred in settling transactions.
2. INSOLVENCY OF FOREIGN CUSTODIANS. The Custodian shall be responsible for
losses or damages suffered by the Series arising as a result of the insolvency
of a Foreign Custodian only to the extent that the Custodian failed to comply
with the standard of care set forth in Article II with respect to the selection
and monitoring of such Foreign Custodian.
3. LIABILITY FOR DEPOSITORIES. The Custodian shall not be responsible for any
losses resulting from the deposit or maintenance of Securities, Assets or other
property of the Series with a Securities Depository.
4. DAMAGES. Under no circumstances shall the Custodian be liable for any
indirect,
14
consequential or special damages with respect to its role as Foreign Custody
Manager, Custodian or information vendor.
5. INDEMNIFICATION; LIABILITY OF THE SERIES.
a. The Fund shall indemnify and hold the Custodian harmless from all
liability and costs, including reasonable counsel fees and expenses, relating to
or arising out of the performance of the Custodian's obligations under this
Agreement except to the extent resulting from the Custodian's negligence or
willful misconduct. This provision shall survive the termination of this
Agreement.
b. The Series and the Custodian agree that the obligations of the Fund
under this Agreement shall not be binding upon any of the trustees,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Series, individually, but are binding only upon the assets and
property of the Fund.
6. FORCE MAJEURE. Notwithstanding anything in this Agreement to the contrary
contained herein, the Custodian shall not be responsible or liable for its
failure to perform under this Agreement or for any losses to the account
resulting from any event beyond the reasonable control of the Custodian, its
agents or subcustodians. This provision shall survive the termination of this
Agreement
7. TERMINATION.
a. Either party may terminate this Agreement by giving the other party
sixty (60) days notice in writing, specifying the date of such termination. In
the event notice is given by the Fund, it shall be accompanied by a Certificate
evidencing the vote of the Fund's Board to terminate this Agreement and
designating a successor.
b. In the event notice of termination is given by the Custodian, the Fund
shall, on or before the termination date, deliver to the Custodian a Certificate
evidencing the vote of the Board designating a successor custodian. In the
absence of such designation, the Custodian may designate a successor custodian,
which shall be a person qualified to so act under the Act or the Series. If the
Fund fails to designate a successor custodian, the Fund shall, upon the date
specified in the notice of termination, and upon the delivery by the Custodian
of all Securities and monies then owned by the Series, be deemed to be its own
custodian and the Custodian shall thereby be relieved of all duties and or the
Series responsibilities under this Agreement other than the duty with respect to
Securities held in the Book-Entry System which cannot be delivered to the
Series.
c. Upon termination of the Agreement, the Custodian shall, upon receipt of
a notice of acceptance by the successor custodian, deliver to the successor all
Securities and monies then held by the Custodian on behalf of the Series, after
deducting all fees, expenses and other amounts owed.
d. In the event of a dispute following the termination of this Agreement,
all relevant provisions shall be deemed to continue to apply to the obligations
and liabilities
15
of the parties.
8. INSPECTION OF BOOKS AND RECORDS. The books and records of the Custodian
directly related to the Fund shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Fund at its own expense and with
prior written notice to the Custodian, and by the appropriate employees of the
Securities and Exchange Commission.
9. MISCELLANEOUS.
a. APPENDIX A is a Certificate signed by the Secretary of the Fund setting
forth the names and the signatures of Authorized Persons. The Fund shall furnish
a new Certificate when the list of Authorized Persons is changed in any way.
Until a new certification is received, the Custodian shall be fully protected in
acting upon Instructions from Authorized Persons as set forth in the last
delivered Certificate.
b. APPENDIX B is a Certificate signed by the Secretary of the Fund setting
forth the names and the signatures of the present officers of the Fund. The Fund
agrees to furnish to the Custodian a new Certificate when any changes are made.
Until a new Certificate is received, the Custodian shall be fully protected in
relying upon the last delivered Certificate.
c. Any required written notice or other instrument shall be sufficiently
given if addressed to the Custodian or the Fund as the case may be and delivered
to it at its offices at:
The Custodian:
Mellon Trust of New England, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
The Fund:
The RBB Fund, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or at such other place as the parties may from time to time designate to the
other in writing.
d. This Agreement may not be amended or modified except by a written
agreement executed by both parties.
e. This Agreement shall extend to and shall be binding upon the parties
16
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Fund without the written consent
of the Custodian, or by the Custodian without the written consent of the Fund
authorized or approved by a vote of the Board, provided, however, that the
Custodian may assign the Agreement or any function thereof to any corporation or
entity which directly or indirectly is controlled by, or is under common control
with, the Custodian and any other attempted assignment without written consent
shall be null and void.
f. Nothing in this Agreement shall give or be construed to give or confer
upon any third party any rights hereunder.
g. The Custodian represents that it is a U.S. Bank within the meaning of
paragraph (a)(7) of Rule 17f-5.
h. The Fund acknowledges and agrees that, except as expressly set forth in
this Agreement, the Fund is solely responsible to assure that the maintenance of
the Series' Securities and cash hereunder complies with applicable laws and
regulations, including without limitation the Act and the rules and regulations
promulgated thereunder and applicable interpretations thereof or exemptions
therefrom. The Fund represents that it has determined that it is reasonable to
rely on Custodian to perform the responsibilities delegated pursuant to this
Agreement.
i. This Agreement shall be construed in accordance with the laws of The
Commonwealth of Massachusetts.
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. Each party represents and warrants to the other that it has all
necessary power and authority, and has obtained any consent or approval
necessary to permit it, to enter into and perform this Agreement and that this
Agreement does not violate, give rise to a default or right of termination under
or otherwise conflict with any applicable law, regulation, ruling, decree or
other governmental authorization or any contract to which it is a party or by
which any of its assets is bound. Each party represents and warrants that the
individual executing this Agreement on its behalf has the requisite authority to
bind the Fund or the Custodian to this Agreement. The Fund has received and read
the "Customer Identification Program Notice", a copy of which is attached to
this Agreement as Exhibit A.
l. 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.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day and
year first above written.
THE RBB FUND, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Treasurer
MELLON TRUST OF NEW ENGLAND, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
APPENDIX A
LIST OF AUTHORIZED PERSONS
I, ▇▇▇▇ ▇▇▇▇▇, the Secretary of THE RBB FUND, INC., a corporation
organized under the laws of the State of Maryland (the "Fund"), do hereby
certify that:
The following individuals have been duly authorized as Authorized Persons
to give Instructions on behalf of the Fund and each Series thereof and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
NAME SIGNATURE
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ /s ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇'▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇
Easton ▇▇▇▇▇▇▇▇ /s/ Easton ▇▇▇▇▇▇▇▇
19
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------
Secretary
Dated: April 29, 2005
20
APPENDIX B
FUND OFFICERS
I, ▇▇▇▇ ▇. ▇▇▇▇▇, the Secretary of THE RBB FUND, INC., a corporation
organized under the laws of the State of Maryland (the "Fund"), do hereby
certify that:
The following individuals serve in the following positions with the Series
and each individual has been duly elected or appointed to each such position and
qualified therefor in conformity with the Fund's governing instrument and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
NAME POSITION SIGNATURE
---- -------- ---------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chairman of the Board /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President and Treasurer /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ Assistant Treasurer /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ Secretary /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Assistant Secretary /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Chief Compliance Officer /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Secretary ▇▇▇▇ ▇. ▇▇▇▇▇
Dated: April 29, 2005
21
APPENDIX C
SELECTED COUNTRIES
Australia
Austria
Belgium
Canada
China/Shenzhen
China/Shanghai
Denmark
Finland
France
Germany
Greece
Hong Kong
Ireland
Italy
Japan
Luxembourg
The Netherlands
New Zealand
Norway
Portugal
Singapore
Spain
Sweden
Switzerland
Turkey
United Kingdom
"*Note, Custodian will not act as a Foreign Custody Manager with respect to
assets held in this country. Holding assets and use of Mellon's usual
subcustodian in this country is subject to Instructions by the Fund and its
execution of a separate letter-agreement pertaining to custody and market
risks."
22
APPENDIX D
LIST OF FUNDS
WPG LARGE CAP GROWTH FUND
TUDOR FUND
WPG CORE BOND FUND
23
EXHIBIT A
CUSTOMER IDENTIFICATION PROGRAM NOTICE
[LOGO] MELLON
--------------------------------------------------------------------------------
CUSTOMER IDENTIFICATION PROGRAM NOTICE
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
To help the government fight the funding of terrorism and money laundering
activities, all financial institutions are required by law to obtain, verify and
record information that identifies each individual or entity that opens an
account.
What this means for you: When you open an account, we will ask you for
your name, address, taxpayer or other government identification number and other
information, such as date of birth for individuals, that will allow us to
identify you. We may also ask to see identification documents such as a driver's
license, passport or documents showing existence of the entity.
--------------------------------------------------------------------------------
REV. 09/03
24
