RYDEX CAPITAL PARTNERS SPHINX FUND
CUSTODIAN AGREEMENT
AGREEMENT dated as of June 23, 2003 between Forum Trust, LLC (the
"Custodian"), a limited liability company organized under the laws of the State
of Maine doing business as a nondepository trust company, and Rydex Capital
Partners SPhinX Fund, a statutory trust organized under the laws of the State of
Delaware (the "Customer").
WHEREAS, the Customer is non-diversified, closed-end management investment
company that is registered under the Investment Company Act of 1940, as amended
("1940 Act") and offers shares representing an interest in a separate portfolio
of Securities and Cash (each as hereinafter defined) (the "Portfolio"); and
WHEREAS, Custodian has entered into a certain Master Subcustodian
Agreement with Deutsche Bank, as successor-in-interest to Bankers Trust, dated
as of April 20, 1999 (the "Master Subcustodian Agreement") under which Deutsche
Bank provides certain sub-custody services to Custodian; and
WHEREAS, Customer wishes to retain Custodian to provide certain custodial
services to Customer for the benefit of the Portfolio, and Custodian is willing
to provide such services;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Employment of Custodian. Customer, on behalf of the Portfolio, hereby
employs Custodian as custodian of all assets of the Portfolio that are delivered
to and accepted by Custodian or any Subcustodian (as that term is defined in
Section 4) (the "Property") pursuant to the terms and conditions set forth
herein. For purposes of this Agreement, "delivery" of Property shall include the
acquisition by Customer of a security entitlement (as that term is defined in
the New York Uniform Commercial Code ("UCC")). Without limitation, such Property
shall include stocks and other equity interests of every type, evidences of
indebtedness, derivatives (including , but not limited to, options, shares of
ETFs, swaps, futures contracts, forward contracts and options on futures
contracts) other instruments representing same or rights or obligations to
receive, purchase, deliver or sell same and other non-cash investment property
of the Portfolio ("Securities") and cash from any source and in United States
("U.S.") dollars ("Cash"), provided that Custodian shall have the right, in its
sole discretion, to refuse to accept as Property any property of the Portfolio
that Custodian considers not to be appropriate or in proper form for deposit for
any reason. Custodian shall not be responsible for any property of the Portfolio
held or received by Customer or others and not delivered to Custodian or any
Subcustodian.
2. Maintenance of Securities and Cash at Custodian and Subcustodian
Locations. Pursuant to Instructions (as hereinafter defined in Section 15),
Customer shall direct Custodian to
settle Securities transactions and maintain Cash and cash equivalents in such
amounts reasonably necessary to effect Customer's transactions in such
Securities.
3. Custody Account. Custodian agrees to establish and maintain one or more
custody accounts on its books each in the name of Customer on behalf of the
Portfolio (each, an "Account") for any and all Property from time to time
received and accepted by Custodian or any Subcustodian for the account of the
Portfolio. Customer, on behalf of the Portfolio, (i) acknowledges its
responsibility as a principal for all of its obligations to Custodian arising
under or in connection with this Agreement, notwithstanding, that it may be
acting on behalf of other persons, and (ii) warrants its authority to deposit in
the appropriate Account any Property received from Customer by Custodian or a
Subcustodian and to give, and authorize others to give, instructions relative
thereto. Custodian may deliver securities of the same class in place of those
deposited in the Account.
Custodian shall hold, keep safe and protect as custodian for each Account
all Property in such Account and, to the extent such Property constitutes
"financial assets" as defined in the UCC, shall maintain those financial assets
in such Account as security entitlements in favor of the Portfolio. All
transactions, including, but not limited to, foreign exchange transactions,
involving the Property shall be executed or settled solely in accordance with
Instructions (which shall specifically reference the Account for which such
transaction is being settled), except that until Custodian receives Instructions
to the contrary, Custodian will:
(a) collect all interest and dividends and all other income and
payments, whether paid in cash or in kind, on the Property, as the
same become payable and credit the same to the appropriate Account;
(b) present for payment all Securities held in an Account that are
called, redeemed or retired or otherwise become payable and all
coupons and other income items that call for payment upon
presentation to the extent that Custodian or Subcustodian is
actually aware of such opportunities and hold the cash received in
such Account pursuant to this Agreement;
(c) (i) exchange Securities where the exchange is purely ministerial
(including, without limitation, the exchange of temporary securities
for those in definitive form and the exchange of warrants, or other
documents of entitlement to securities, for the Securities
themselves) and (ii) when notification of a tender or exchange offer
(other than ministerial exchanges described in (i) above) is
received for an Account, endeavor to receive Instructions, provided
that if such Instructions are not received in time for Custodian to
take timely action, no action shall be taken with respect thereto;
(d) whenever notification of a rights entitlement or a fractional
interest resulting from a rights issue, stock dividend or stock
split is received for an Account and such rights entitlement or
fractional interest bears an expiration date, if after endeavoring
to obtain Instructions such Instructions are not received in time
for Custodian to take
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timely action or if actual notice of such actions was received too
late to seek Instructions, sell in the discretion of Custodian
(which sale Customer hereby authorizes Custodian to make) such
rights entitlement or fractional interest and credit the Account
with the net proceeds of such sale;
(e) execute in Customer's name for an Account, whenever Custodian deems
it appropriate, such ownership and other certificates as may be
required to obtain the payment of income from the Property in such
Account;
(f) pay for each Account, any and all taxes and levies in the nature of
taxes imposed on interest, dividends or other similar income on the
Property in such Account by any governmental authority. In the event
there is insufficient Cash available in such Account to pay such
taxes and levies, Custodian shall notify Customer of the amount of
the shortfall and Customer may, or may cause the Portfolio to, at
its option, deposit additional Cash in such Account or take steps to
have sufficient Cash available. Customer, on behalf of the
Portfolio, agrees, when and if requested by Custodian and required
in connection with the payment of any such taxes, to cooperate with
Custodian in furnishing information, executing documents or
otherwise;
(g) appoint brokers and agents for any of the ministerial transactions
involving the Securities described in (a) - (f), including, without
limitation, affiliates of Custodian or any Subcustodian; and
(h) in the event of any loss of Securities or Cash, use its best efforts
to ascertain the circumstances relating to such loss and promptly
report the same to Customer.
4. Subcustodians and Securities Systems. Customer authorizes and instructs
Custodian to maintain the Property in each Account directly in one of its U.S.
branches or indirectly through custody accounts that have been established by
Custodian with the following other securities intermediaries: (a) another U.S.
bank or trust company (including Deutsche Bank pursuant to the Master
Subcustodian Agreement) or branch thereof located in the U.S. that is itself
qualified under the 1940 Act, to act as custodian, or a non-U.S. branch of
Custodian or of any U.S. Subcustodian (individually, a "Subcustodian"), or (b) a
U.S. securities depository or clearing agency or system in which Custodian or a
U.S. Subcustodian participates (individually, a "Securities System") provided
that in each case in which a U.S. Subcustodian or Securities System is employed,
Custodian shall notify Customer of the appointment of such U.S. Subcustodian or
Securities System.
Upon receipt of Instructions from Customer, Custodian agrees to cease the
employment of any Subcustodian or Securities System with respect to Customer,
and if desirable and practicable, appoint a replacement Subcustodian or
securities system in accordance with the provisions of this Section. In
addition, Custodian may, at any time in its discretion, upon written
notification to Customer, terminate the employment of any Subcustodian or
Securities System.
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5. Use of Subcustodian. With respect to Property in an Account that is
maintained by Custodian through a Subcustodian employed pursuant to Section 4:
(a) Custodian will identify on its books as belonging to Customer on
behalf of the Portfolio, any Property maintained through such
Subcustodian.
(b) Any Property in the Account held by a Subcustodian will be subject
only to the instructions of Custodian or its agents.
(c) Property deposited with a Subcustodian will be maintained in an
account holding only assets for customers of Custodian.
6. Use of Securities System. With respect to Property in the Account(s)
that is maintained by Custodian or any Subcustodian through a Securities System
employed pursuant to Section 4:
(a) Custodian shall, and the Subcustodian will be required by its
agreement with Custodian to, identify on its books such Property as
being maintained for the account of Custodian or Subcustodian for
its customers.
(b) Any Property maintained through a Securities System for the account
of Custodian or a Subcustodian will be subject only to the
instructions of Custodian or such Subcustodian, as the case may be.
(c) Property deposited with a Securities System will be maintained in an
account holding only assets for customers of Custodian or
Subcustodian, as the case may be, unless precluded by applicable
law, rule, or regulation.
(d) Custodian shall provide Customer with any report obtained by
Custodian or Subcustodian on the Securities System's accounting
system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System.
7. Agents. Custodian may at any time or times in its sole discretion
appoint (or remove), as its agent to carry out such of the provisions of this
Agreement as Custodian may from time to time direct, any other U.S. bank or
trust company that is itself qualified under the 1940 Act to act as custodian,
including Deutsche Bank; provided, however, that the appointment of any agent
shall not relieve Custodian of its responsibilities or liabilities hereunder.
Custodian shall provide reasonable notice to Customer of the appointment or
removal of any agent.
8. Records, Ownership of Property, Statements, Opinions of Independent
Certified Public Accountants.
(a) The ownership of the Property, whether maintained directly by
Custodian or indirectly through a Subcustodian or a Securities System as
authorized herein, shall be clearly
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recorded on Custodian's books as belonging to the appropriate Account and not to
the Custodian. Custodian shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions for each Account.
All accounts, books and records of Custodian relating thereto shall be open to
inspection and audit at all reasonable times during normal business hours by any
person designated by Customer. All such accounts shall be maintained and
preserved in the form reasonably requested by Customer. Custodian will supply to
Customer from time to time, as mutually agreed upon, a statement in respect to
any Property in an Account maintained by Custodian or by a Subcustodian. In the
absence of the filing in writing with Custodian by Customer of exceptions or
objections to any such statement within sixty (60) days of the mailing thereof,
Customer shall be deemed to have approved such statement and in such case or
upon written approval of Customer of any such statement, such statement shall be
presumed to be for all purposes correct with respect to all information set
forth therein.
(b) Custodian shall take all reasonable action as Customer may request to
obtain from year to year favorable opinions from Customer's independent
certified public accountants with respect to Custodian's activities hereunder in
connection with the preparation of Customer's registration statement on Form N-2
and Customer's Form N-SAR or other periodic reports to the Securities and
Exchange Commission ("SEC") and with respect to any other requirements of the
SEC.
(c) At the request of Customer, Custodian shall deliver, and shall cause
the Subcustodians to deliver, to Customer a written report prepared by
Custodian's independent certified public accountants with respect to the
services provided by Custodian under this Agreement, including, without
limitation, Custodian's accounting system, internal accounting control and
procedures for safeguarding Cash and Securities, including Cash and Securities
deposited and/or maintained in a securities system or with a Subcustodian. Such
report shall be of sufficient scope and in sufficient detail as may reasonably
be required by Customer and as may reasonably be obtained by Custodian. At the
request of Customer, Custodian shall also deliver available reports regarding
the Custodian's financial strength.
(d) Customer may elect to participate in any of the electronic on-line
service and communications systems offered by Custodian or a Subcustodian that
can provide Customer, on a daily basis, with the ability to view on-line or to
print in hard copy various reports of Account activity and of Securities and/or
Cash being held in any Account. To the extent that such service shall include
market values of Securities in an Account, Customer hereby acknowledges that
Custodian or such Subcustodian now obtains and may in the future obtain
information on such values from outside sources that Custodian or such
Subcustodian considers to be reliable, and Customer agrees that Custodian and
such Subcustodian (i) does not verify or represent or warrant either the
reliability of such service nor the accuracy or completeness of any such
information furnished or obtained by or through such service and (ii) shall be
subject to the standard of care set forth in Section 16 of this Agreement in
selecting and utilizing such service or furnishing any information derived
therefrom.
9. Holding of Securities, Nominees, etc. Securities in an Account that are
maintained by Custodian or any Subcustodian may be held directly by such entity
in the name of Customer or
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in bearer form or maintained, on behalf of the Portfolio, in Custodian's or
Subcustodian's name or in the name of Custodian's or Subcustodian's nominee.
Securities that are maintained through a Subcustodian or which are eligible for
deposit in a Securities System as provided above may be maintained with the
Subcustodian or the Securities System in an account for Custodian's or
Subcustodian's customers, unless prohibited by law, rule, or regulation.
Custodian or Subcustodian, as the case may be, may combine certificates
representing Securities held in an Account with certificates of the same issue
held by Custodian or Subcustodian as fiduciary or as a custodian. In the event
that any Securities in the name of Custodian or its nominee or held by a
Subcustodian and registered in the name of such Subcustodian or its nominee are
called for partial redemption by the issuer of such Security, Custodian may,
subject to the rules or regulations pertaining to allocation of any Securities
System in which such Securities have been deposited, allot, or cause to be
allotted, the called portion of the respective beneficial holders of such class
of security in any manner Custodian deems to be fair and equitable. Securities
maintained with a Securities System shall be maintained subject to the rules of
that Securities System governing the rights and obligations among the Securities
System and its participants.
10. Proxies, etc. With respect to any proxies, notices, reports or other
communications pertaining to any of the Securities in any Account, Custodian
shall perform such services and only such services as are (i) set forth in
Section 3 of this Agreement, (ii) described in the applicable Service Standards,
and (iii) as may otherwise be agreed upon between Custodian and Customer the
("Proxy Service"). The liability and responsibility of Custodian in connection
with the Proxy Service referred to in the immediately preceding sentence shall
be as set forth in the description of the Proxy Service and as may be agreed
upon by Custodian and Customer in connection with the furnishing of any such
additional service and shall not be affected by any other term of this
Agreement. Neither Custodian nor its nominees or agents shall vote upon or in
respect of any of the Securities in an Account, execute any form of proxy to
vote thereon, or give any consent or take any action (except as provided in
Section 3) with respect thereto except upon the receipt of Instructions.
11. Segregated Account. To assist Customer in complying with the
requirements of the 1940 Act and the rules and regulations thereunder, Custodian
shall, upon receipt of Instructions, establish and maintain a segregated account
or accounts on its books for and on behalf of the Portfolio.
12. Settlement Procedures. Securities will be transferred, exchanged or
delivered by Custodian or a Subcustodian upon receipt by Custodian of
Instructions that include all information required by Custodian. Settlement and
payment for Securities received for an Account and delivery of Securities out of
such Account may be effected in accordance with the customary or established
securities trading or securities processing practices and procedures in the
jurisdiction or market in which the transaction occurs, including, without
limitation, delivering Securities to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such Securities from such purchaser
or dealer, as such practices and procedures may be modified or supplemented in
accordance with the standard operating procedures of Custodian in effect from
time to time for that jurisdiction or market, provided that such procedures are
not unreasonable when compared to customary procedures with
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respect to such jurisdiction or market. Custodian shall not be liable for any
loss which results from effecting transactions in accordance with the customary
or established securities trading or securities processing practices and
procedures in the applicable jurisdiction or market.
Custodian or a Subcustodian may settle purchases and sales against, or
credit income to, an Account, and Custodian may, at its sole option upon written
notice to Customer, reverse such credits or debits to the appropriate Account in
the event that the transaction does not settle, or the income is not received in
a timely manner, and Customer agrees to hold Custodian harmless from any losses
that may result therefrom. With respect to the activities of Deutsche Bank as
Subcustodian under the Master Subcustodian Agreement, such credits and
reversals, if any, shall be on a contractual basis, as outlined in the Deutsche
Bank Service Standards, as described below and provided to Customer by
Custodian.
The applicable Service Standards mean the the Policies and Standards
Manual, and any other documents issued by the Custodian, Deutsche Bank and other
Subcustodians from time to time specifying the procedures for communicating with
a customer, the terms of any additional services to be provided to a customer,
and such other matters as may be agreed between the parties time to time. Copies
of the current Service Standards have been delivered to Customer and notice of
any amendments thereto shall also be promptly provided to the Customer.
13. Conditional Credits.
(a) Notwithstanding any other provision of this Agreement, Custodian or a
Subcustodian shall not be required to comply with any Instructions to settle the
purchase of any Securities for the Account unless there are sufficient
immediately available funds in the relevant currency in the Account, provided
that, if, after all expenses, debits and withdrawals of Cash in the relevant
currency ("Debits") applicable to the Account have been made and if after all
Conditional Credits, as defined below, applicable to the Account have become
final entries as set forth in (c) below, the amount of immediately available
funds of the relevant currency in such Account is at least equal to the
aggregate purchase price of all securities for which Custodian has received
Instructions to settle on that date ("Settlement Date"), Custodian, upon
settlement, shall credit the Securities to the Account by making a final entry
on its books and records.
(b) Notwithstanding the foregoing, if after all Debits applicable to the
Account have been made, the amount of immediately available funds in a given
currency in such Account are less than the aggregate purchase price in such
currency of all securities for which Custodian has received Instructions to
settle on any Settlement Date, Custodian, upon settlement, may credit the
securities to the Account by making a conditional entry on its books and records
("Conditional Credit"), pending receipt of sufficient immediately available
funds in the relevant currency in the Account.
(c) If, within a reasonable time from the posting of a Conditional Credit
and after all Debits applicable to the Account have been made, immediately
available funds in the relevant currency at least equal to the aggregate
purchase price in such currency of all securities subject to a Conditional
Credit on a Settlement Date are deposited into the Account, Custodian shall make
the
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Conditional Credit a final entry on its books and records. In such case,
Customer shall be liable to Custodian only for late charges at a rate that
Custodian customarily charges for similar extensions of credit.
(d) If (i) within a reasonable time from the posting of a Conditional
Credit, immediately available funds at least equal to the resultant Debit on a
Settlement Date are not deposited in the Account, or (ii) any Proceeding (as
defined below) shall occur, Custodian may sell such of the Securities subject to
the Conditional Credit as it selects in its sole discretion and shall apply the
net proceeds of such sale to cover such Debit, including related late charges,
and any remaining proceeds shall be credited to the Account. If such proceeds
are insufficient to satisfy such Debit in full, Customer shall continue to be
liable to Custodian for any shortfall. Custodian shall make the Conditional
Credit a final entry on its books as to the Securities not required to be sold
to satisfy such Debit. Pending payment in full by Customer of the purchase price
for Securities subject to a Conditional Credit, and Custodian's making a
Conditional Credit a final entry on its books, and, unless consented to by
Custodian, Customer shall have no right to give further Instructions in respect
of Securities subject to a Conditional Credit. Custodian shall have the sole
discretion to determine which Securities shall be deemed to have been paid for
by Customer out of funds available in the Account. Any such Conditional Credit
may be reversed (and any corresponding Debit shall be canceled) by Custodian
unless and until Custodian makes a final entry on its books crediting such
Securities to the Account. The term "Proceeding" shall mean any insolvency,
bankruptcy, receivership, reorganization or similar proceeding relating to
Customer, whether voluntary or involuntary.
(e) Customer agrees that it will not use the Account to facilitate the
purchase of securities without sufficient funds in the Account (which funds
shall not include the expected proceeds of the sale of the purchased
securities).
14. Permitted Transactions. Except as otherwise provided herein, Customer
and Custodian agree that transactions will be effected pursuant to this
Agreement only upon Instructions in accordance with Section 15 (but subject to
Section 3) and only for the purposes listed below.
(a) In connection with the purchase or sale of Securities at prices as
confirmed by Instructions.
(b) When Securities are called, redeemed or retired, or otherwise become
payable.
(c) 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.
(d) Upon conversion of Securities pursuant to their terms into other
securities.
(e) Upon exercise of subscription, purchase or other similar rights
represented by Securities.
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(f) For the payment of interest, taxes, management or supervisory fees,
distributions or operating expenses.
(g) In connection with any borrowings by Customer requiring a pledge of
Securities, but only against receipt of amounts borrowed or in order
to satisfy requirements for additional or substitute collateral.
(h) In connection with any loans, but only against receipt of collateral
as specified in Instructions which shall reflect any restrictions
applicable to Customer.
(i) For the purpose of redeeming shares of the capital stock of Customer
against delivery of the shares to be redeemed to Custodian, a
Subcustodian or Customer's transfer agent.
(j) For the purpose of redeeming in kind shares of Customer against
delivery of the shares to be redeemed to Custodian, a Subcustodian
or Customer's transfer agent.
(k) For delivery in accordance with the provisions of any agreement
among Customer, on behalf of the Portfolio, the Portfolio's
investment adviser and a broker-dealer registered under the
Securities Exchange Act of 1934 and a member of the National
Association of Securities Dealers, Inc., relating to compliance with
the rules of The Options Clearing Corporation, the Commodities
Futures Trading Commission or of any registered national securities
exchange, or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by
Customer.
(l) For release of Securities to designated brokers under covered call
options, provided, however, that such Securities shall be released
only upon payment to Custodian of monies for the premium due and a
receipt for the Securities which are to be held in escrow. Upon
exercise of the option, or at expiration, Custodian will receive the
Securities previously deposited from broker. Custodian will act
strictly 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 request for such return.
(m) For spot or forward foreign exchange transactions to facilitate
security trading or receipt of income from Securities related
transactions.
(n) Upon the termination of this Agreement as set forth in Section 21.
(o) For other proper purposes.
15. Instructions. The term "Instructions" means instructions from Customer
in respect of any of Custodian's duties hereunder that have been received by
Custodian at its address set forth in Section 22 below (i) in writing
(including, without limitation, facsimile transmission) or by
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tested telex signed or given by such one or more person or persons as Customer
shall have from time to time authorized in writing to give the particular class
of Instructions in question and whose name and (if applicable) signature and
office address have been filed with Custodian; or (ii) which have been
transmitted electronically through an electronic on-line service and
communications system offered by Custodian or other electronic instruction
system acceptable to Custodian; or (iii) a telephonic or oral communication by
one or more persons as Customer shall have from time to time authorized to give
the particular class of Instructions in question and whose name has been filed
with Custodian; or (iv) upon receipt of such other form of instructions as
Customer may from time to time authorize in writing and which Custodian has
agreed in writing to accept. Instructions in the form of oral communications
shall be confirmed by Customer by tested telex or writing in the manner set
forth in clause (i) above, but the lack of such confirmation shall in no way
affect any action taken by Custodian in reliance upon such oral instructions
prior to Custodian's receipt of such confirmation. Instructions may relate to
specific transactions or to types or classes of transactions, and may be in the
form of standing instructions.
Custodian shall have the right to assume in the absence of notice to the
contrary from Customer that any person whose name is on file with Custodian
pursuant to this Section has been authorized by Customer to give the
Instructions in question and that such authorization has not been revoked.
Custodian may act upon and conclusively rely on, without any liability to
Customer or any other person or entity for any losses resulting therefrom, any
Instructions reasonably believed by it to be furnished by the proper person or
persons as provided above.
16. Standard of Care. Custodian shall be responsible for the performance
of only such duties as are set forth herein or contained in Instructions given
to Custodian that are not contrary to the provisions of this Agreement.
Custodian will use reasonable care and diligence with respect to the safekeeping
of Property in each Account and, except as otherwise expressly provided herein,
in carrying out its obligations under this Agreement. So long as and to the
extent that it has exercised reasonable care and diligence, Custodian shall not
be responsible for the title, validity or genuineness of any Property or other
property or evidence of title thereto received by it or delivered by it pursuant
to this Agreement and shall be held harmless in acting upon, and may
conclusively rely on, without liability for any loss resulting therefrom, any
notice, request, consent, certificate or other instrument reasonably believed by
it to be genuine and to be signed or furnished by the proper party or parties,
including, without limitation, Instructions unless Custodian acted with willful
malfeasance or with bad faith, or was negligent, with respect to such action or
omission ("Standard of Care"). Custodian shall be indemnified by Customer for
any losses, damages, costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) incurred by Custodian and arising out
of action taken or omitted by Custodian hereunder or under any Instructions,
unless Custodian acted with willful malfeasance or with bad faith, or was
negligent, with respect to such action or omission. Custodian shall be liable to
Customer for any act or omission to act of any Subcustodian to the same extent
as if Custodian committed such act or omission itself. With respect to a
Securities System, Custodian shall only be responsible or liable for losses
arising from employment of such Securities System caused by Custodian's own
failure to exercise reasonable care in selecting such Securities System;
provided that in the event of any such loss, Custodian shall take all reasonable
steps to enforce such claims as it may have against the Securities System to
protect the interests of Customer.
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In the event of any loss to Customer by reason of the breach by Custodian
or any Subcustodian of Custodian's Standard of Care, Custodian shall be liable
to Customer to the extent of Customer's actual damages at the time such loss was
discovered (including, without limitation, reasonable fees and expenses of
counsel) without reference to any special conditions or circumstances. In no
event shall Custodian be liable for any consequential or special damages.
Custodian shall be entitled to rely, and may act, on advice of counsel
(who may be counsel for Custodian or Customer) on all matters and shall be
without liability for any action reasonably taken or omitted in good faith
pursuant to such advice, provided that with respect to the performance of any
action or omission of any action upon such advice, the Custodian shall be
required to conform to the provisions of this Agreement, including the Standard
of Care set forth in this Section 16.
In the event Customer subscribes to an electronic on-line service and
communications system offered by Custodian, Customer shall be fully responsible
for the security of its connecting terminal, access thereto and the proper and
authorized use thereof and the initiation and application of continuing
effective safeguards with respect thereto and agrees to defend and indemnify
Custodian and hold Custodian harmless from and against any and all losses,
damages, costs and expenses (including the fees and expenses of counsel)
incurred by Custodian as a result of any improper or unauthorized use of such
terminal by Customer or by any others.
All collections of funds or other property paid or distributed in respect
of Securities in an Account, including funds involved in third-party foreign
exchange transactions, shall be made at the risk of Customer, provided,
Custodian has acted in accordance with the Standard of Care set forth in this
Section 16.
Unless Custodian or any Subcustodian breaches the Custodian's standard of
care, Custodian shall have no liability for any loss occasioned by delay in the
actual receipt of notice by Custodian or by a Subcustodian of any payment,
redemption or other transaction regarding Securities in each Account in respect
of which Custodian has agreed to take action as provided in Section 3 hereof.
Custodian shall not be liable for any loss resulting from, or caused by, or
resulting from acts of governmental authorities (whether DE JURE or DE FACTO),
including, without limitation, nationalization, expropriation, and the
imposition of currency restrictions; devaluations of or fluctuations in the
value of currencies; changes in laws and regulations applicable to the banking
or securities industry; market conditions that prevent the orderly execution of
securities transactions or affect the value of Property; acts of war, terrorism,
insurrection or revolution; strikes or work stoppages; the inability of a local
clearing and settlement system to settle transactions for reasons beyond the
reasonable control of Custodian; hurricane, cyclone, earthquake, volcanic
eruption, nuclear fusion, fission or radioactivity, or other acts of God.
Custodian shall have no liability in respect of any loss, damage or
expense suffered by Customer, insofar as such loss, damage or expense arises
from the performance of Custodian's duties hereunder by reason of Custodian's
reliance upon records that were maintained for Customer by entities other than
Custodian prior to Custodian's employment under this Agreement.
-11-
17. Investment Limitations and Legal or Contractual Restrictions or
Regulations. Neither Custodian nor any Subcustodians shall be liable to Customer
or the Portfolio, and Customer agrees to indemnify Custodian, all Subcustodians
and their nominees, for any loss, damage or expense suffered or incurred by
Custodian, any Subcustodian or their nominees arising out of any violation of
any investment restriction or other restriction or limitation applicable to
Customer or the Portfolio pursuant to any contract or any law or regulation.
18. Fees and Expenses. Customer agrees to pay to Custodian such
compensation for its services pursuant to this Agreement as may be mutually
agreed upon in writing from time to time and Custodian's reasonable
out-of-pocket or incidental expenses in connection with the performance of this
Agreement, including (but without limitation) reasonable legal fees as described
herein and/or deemed necessary in the judgment of Custodian to keep safe or
protect the Property in the Account. The initial fee schedule is attached hereto
as Exhibit A. Such fees will not be abated by, nor shall Custodian be required
to account for, any profits or commissions received by Custodian in connection
with its provision of custody services under this agreement. Customer hereby
agrees to hold Custodian harmless from any liability or loss resulting from any
taxes or other governmental charges, and any expense related thereto, which may
be imposed, or assessed with respect to any Property in an Account and also
agree to hold Custodian, its Subcustodians, and their respective nominees
harmless from any liability as a record holder of Property in such Account.
Custodian is authorized to charge the applicable Account for such items, and
Custodian shall have a lien on the Property in the applicable Account for any
amount payable to Custodian under this Agreement, including but not limited to
amounts payable pursuant to Section 13.
19. Tax Reclaims. With respect to withholding taxes deducted and which may
be deducted from any income received from any Property in an Account, Custodian
shall perform such services with respect thereto as are described in the
applicable Service Standards and shall in connection therewith be subject to the
standard of care set forth in such Service Standards. Such standard of care
shall not be affected by any other term of this Agreement.
20. Amendment, Modifications, etc. No provision of this Agreement may be
amended, modified or waived except in a writing signed by the parties hereto
(except that Exhibit A may be amended as provided for therein). In addition, if
Custodian has engaged Deutsche Bank to act as a Subcustodian with respect to any
Property, any amendment to Sections 8(c), 8(d), 16, 17, 24, 27 and 28 of this
Agreement shall require the written consent of Deutsche Bank. No waiver of any
provision hereto shall be deemed a continuing waiver unless it is so designated.
No failure or delay on the part of either party in exercising any power or right
under this Agreement operates as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further exercise thereof or
the exercise of any other power or right.
21. Termination.
(a) This Agreement may be terminated by Customer or Custodian by ninety
(90) days' written notice to the other; provided that notice by Customer shall
specify the names of the persons to whom Custodian shall deliver the Securities
in each Account and to whom the Cash in such
-12-
Account shall be paid. If notice of termination is given by Custodian, Customer
shall, within ninety (90) days following the giving of such notice, deliver to
Custodian a written notice specifying the names of the persons to whom Custodian
shall deliver the Securities in each Account and to whom the Cash in such
Account shall be paid. In either case, Custodian will deliver such Property to
the persons so specified, after deducting therefrom any amounts that Custodian
determines to be owed to it hereunder. In addition, Custodian may in its
discretion withhold from such delivery such Property as may be necessary to
settle transactions pending at the time of such delivery. Customer grants to
Custodian a lien and right of setoff against the Account and all Property held
therein from time to time in the full amount of the foregoing obligations. If
within ninety (90) days following the giving of a notice of termination by
Custodian, Custodian does not receive the aforementioned written notice
specifying the names of the persons to whom Custodian shall deliver the
Securities in each Account and to whom the Cash in such Account shall be paid,
Custodian, at its election, may deliver such Securities and pay such Cash to a
bank or trust company doing business in the State of New York to be held and
disposed of pursuant to the provisions of this Agreement, or may continue to
hold such Securities and Cash until a written notice as aforesaid is delivered
to Custodian, provided that from and after the ninetieth day Custodian's
obligations shall be limited to safekeeping.
(b) Sections 16, 17, 18, 27 and 30 shall survive the termination of this
Agreement.
22. Notices. Except as otherwise provided in this Agreement, all requests,
demands or other communications between the parties or notices in connection
herewith (a) shall be in writing, hand delivered or sent by registered mail,
telex or facsimile addressed to such other address as shall have been furnished
by the receiving party pursuant to the provisions hereof and (b) shall be deemed
effective when received, or, in the case of a telex, when sent to the proper
number and acknowledged by a proper answerback.
23. Several Obligations of the Portfolio. With respect to any obligations
of Customer on behalf of the Portfolio and each of its related Accounts arising
out of this Agreement, Custodian shall look for payment or satisfaction of any
obligation solely to the assets and property of the Portfolio and such Accounts
to which such obligation relates as though Customer had separately contracted
with Custodian by separate written instrument with respect to the Portfolio and
its related Accounts.
24. Security for Payment. To secure payment of all obligations due
hereunder, Customer hereby grants to Custodian a continuing security interest in
and right of setoff against each Account and all Property held therein from time
to time in the full amount of such obligations; provided that, if there is more
than one Account and the obligations secured pursuant to this Section can be
allocated to a specific Account, such security interest and right of setoff will
be limited to Property held for that Account only. Should Customer fail to pay
promptly any amounts owed hereunder, Custodian shall be entitled to use
available Cash in the Account or applicable Account, as the case may be, and to
dispose of Securities in the Account or such applicable Account as is necessary.
In any such case and without limiting the foregoing, Custodian shall be entitled
to take such other actions or exercise such other options, powers and rights as
Custodian now or hereafter has as a secured creditor under the UCC or any other
applicable law, including, without limitation,
-13-
granting to any Subcustodian a security interest in such Accounts on terms
similar to those set forth in this Section 24.
25. Representations and Warranties.
(a) Customer hereby represents and warrants to Custodian that:
(i) the employment of Custodian and the allocation of fees,
expenses and other charges to any Account as herein provided,
is not prohibited by law or any governing documents or
contracts to which it is subject;
(ii) the terms of this Agreement do not violate any obligation by
which Customer is bound, whether arising by contract,
operation of law or otherwise;
(iii) this Agreement has been duly authorized by appropriate action
and when executed and delivered will be binding upon Customer
and the Portfolio in accordance with its terms; and
(iv) it will deliver to Custodian a duly executed Secretary's
Certificate in the form of Exhibit B hereto or such other
evidence of such authorization as Custodian may reasonably
require, whether by way of a certified resolution or
otherwise.
(b) Custodian hereby represents and warrants to Customer that:
(i) the terms of this Agreement do not violate any obligation by
which Custodian is bound, whether arising by contract,
operation of law or otherwise;
(ii) this Agreement has been duly authorized by appropriate action
and when executed and delivered will be binding upon Custodian
in accordance with its terms;
(iii) it will deliver to Customer such evidence of such
authorization as Customer may reasonably require, whether by
way of a certified resolution or otherwise; and
(iv) it is qualified as a custodian under Section 26(a) of the 1940
Act and that it will remain so qualified or upon ceasing to be
so qualified shall promptly notify Customer in writing.
26. Governing Law and Successors and Assigns. This Agreement shall be
governed by the law of the State of New York and shall not be assignable by
either party, but shall bind the successors in interest of Customer and
Custodian.
-14-
27. Third-Party Beneficiary. Customer hereby acknowledges and agrees that
with respect to the Accounts:
(a) As an inducement to Deutsche Bank or any alternate master
Subcustodian to act as a master Subcustodian, Customer authorizes
the Custodian to bind the Customer to (i) those terms of the Master
Subcustodian Agreement, including Section 23 thereof and (ii) those
terms of any agreement between Custodian and any alternate master
Subcustodian, that will, in each case, obligate the Customer to pay
obligations of the Portfolio for Property custodied pursuant to the
Master Subcustodian Agreement or such subcustodian agreement with
any alternate master Subcustodian, as applicable.
(b) Deutsche Bank and any alternate master Subcustodian may rely, as
fully as if it were a party hereto and named as "Custodian" herein,
on the representations, warranties, covenants and indemnities of
Customer set forth in Sections 8(d), 16, 17, 24 and 28 of this
Agreement.
28. Representative Capacity and Binding Obligation. A copy of the
Declaration of Trust of Customer is on file with the Secretary of State of the
State of Delaware (and a copy of the Trust Instrument of Customer is on file
with Customer's secretary). Notice is hereby given that this Agreement is not
executed on behalf of the Trustees of Customer as individuals, and the
obligations of this Agreement are not binding upon any of the Trustees, officers
or shareholders of Customer individually but are binding only upon the assets
and property of the Portfolio.
Custodian agrees that no shareholder, trustee or officer of Customer may
be held personally liable or responsible for any obligations of Customer arising
out of this Agreement.
29. Submission to Jurisdiction. Any suit, action or proceeding arising out
of this Agreement may be instituted in any State or Federal court sitting in the
City of Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, and Custodian and
Customer each irrevocably submits to the non-exclusive jurisdiction of any such
court in any such suit, action or proceeding and waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in such a court and any
claim that such suit, action or proceeding was brought in an inconvenient forum.
30. Confidentiality. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that is publicly
available when provided or thereafter becomes publicly available other than
through a breach of this Agreement, or that is required or requested to be
disclosed by any bank or other regulatory examiner of Custodian, Customer, or
any
-15-
Subcustodian, any auditor of the parties hereto, by judicial or administrative
process or otherwise by applicable law or regulation.
31. Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other provision of this Agreement.
32. Entire Agreement. This Agreement together with its Exhibits, contains
the entire agreement between the parties relating to the subject matter hereof
and supersedes any oral statements and prior writings with respect thereto.
33. Headings. The headings of the sections hereof are included for
convenience of reference only and do not form a part of this Agreement.
34. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties hereto.
IN WITNESS WHEREOF, each of the parties has caused its duly authorized
signatories to execute this Agreement as of the date first written above.
FORUM TRUST, LLC
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
--------------
Title: President
---------
RYDEX CAPITAL PARTNERS SPHINX FUND
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
----------------
Title: President
---------
-16-
CUSTODIAN AGREEMENT
EXHIBIT A
JUNE 23, 2003
FEE SCHEDULE
This Exhibit A shall be amended upon delivery by Custodian of a new Exhibit A to
Customer and acceptance thereof by Customer and shall be effective as of the
date of acceptance by Customer or a date agreed upon between Custodian and
Customer.
No fee shall be payable hereunder during any period in which Customer invests
all (or substantially all) of its investment assets in book-entry hedge funds.
Fees, as mutual agreed between Custodian and Customer shall be charged with
respect to the custody of securities held by Customer other than book-entry
hedge funds.
NOTES
The standard custody service includes: (i) asset safekeeping, (ii)
trade settlement, (iii) income collection, (iv) corporate action
processing (including proxy voting) and (v) tax reclaims (where
applicable.)
Services cover only domestic accounts (i.e., U.S. assets only) and
utilize actual settlement and are subject to the guidelines
indicated in the Deutsche Bank Policies and Standards manual.
All domestic receipts and tax reclaim refunds are credited to client
accounts net of agent's collection fees (where applicable).
Foreign Exchange transactions conducted outside Deutsche Bank will
be charged $50 per wire transfer.
Out-of-pocket expenses are borne by Customer. Out-of-pocket expenses
include, but are not limited to, stamp charges, duties, taxes,
application and/or registration fees, banking services (wire, ACH),
communications, reproduction, record storage and retention,
including imaging costs, and postage and delivery services. These
charges are passed on at cost.
-A1-
CUSTODIAN AGREEMENT
EXHIBIT B
SECRETARY'S CERTIFICATE
I, Xxxxx X. Xxxxx, hereby certify that I am the Secretary of Rydex Capital
Partners SPhinX Fund, a statutory trust organized under the laws of the State of
Delaware (the "Company"), and as such I am duly authorized to, and do hereby,
certify that:
1. Organizational Documents. The Company's organizational documents, and
all amendments thereto, have been filed with the appropriate governmental
officials of the State of Delaware, the Company continues to be in existence and
is in good standing, and no action has been taken to repeal such organizational
documents, the same being in full force and effect on the date hereof.
2. Bylaws. The Company's Bylaws have been duly adopted and no action has
been taken to repeal such Bylaws, the same being in full force and effect.
3. Resolutions. Resolutions have been duly adopted on behalf of the
Company, which resolutions (i) have not in any way been revoked or rescinded,
(ii) have been in full force and effect since their adoption, to and including
the date hereof, and are now in full force and effect, and (iii) are the only
corporate proceedings of the Company now in force relating to or affecting the
matters referred to therein, including, without limitation, confirming that the
Company is duly authorized to enter into a certain custody agreement with Forum
Trust, LLC (the "Agreement"), and that certain designated officers, including
those identified in paragraph 4 of this Certificate, are authorized to execute
said Agreement on behalf of the Company, in conformity with the requirements of
the Company's organizational documents, Bylaws, and other pertinent documents to
which the Company may be bound.
4. Incumbency. The following named individuals are duly elected (or
appointed), qualified, and acting officers of the Company holding those offices
set forth opposite their respective names as of the date hereof, each having
full authority, acting individually, to bind the Company, as a legal matter,
with respect to all matters pertaining to the Agreement, and to execute and
deliver said Agreement on behalf of the Company, and the signatures set forth
opposite the respective names and titles of said officers are their true,
authentic signatures:
Name Title Signature
---- ----- ---------
Xxxxxxx X. Xxxxx President /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxx X. Xxxxxxxxxxx Treasurer /s/ Xxxx X. Xxxxxxxxxxx
-----------------------
-B1-
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxx Secretary /s/ Xxxxx X. Xxxxx
---------------------
Xxxxxxxxx Xxxxxxx Assistant Treasurer /s/ Xxxxxxxxx Xxxxxxx
---------------------
Xxxx X. Xxxxxx Assistant Treasurer /s/ Xxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxx Assistant Secretary /s/ Xxxxxx X. Xxxxx
---------------------
5. Authorized Instructions.
(a) General. Any two of the officers of the Company listed below are
authorized to deliver instructions to the Company's custodian and/or its agents
on behalf of the Company.
(b) Administration. Any two of the persons authorized by Forum
Administrative Services, Limited Liability Company listed on Schedule 1 may
deliver instructions to the Company's custodian and/or its agents on behalf of
the Company with respect to the approval of bills for the payment of the
expenses of the Company.
(c) Fund Accounting. Any two of the persons authorized by Forum Accounting
Services, Limited Liability Company listed on Schedule 2 may deliver
instructions to the Company's custodian and/or its agents with respect to
transfers of stocks and other equity interests of every type, evidences of
indebtedness, other instruments representing same or rights or obligations to
receive, purchase, deliver or sell same and other non-cash property of the
Company on behalf of the Company, and instructions with respect to transfers of
cash of the Company from any money market mutual fund on behalf of the Company.
(d) Transfer Agency. Any two persons authorized by Forum Shareholder
Services, Limited Liability Company listed on Schedule 3 may deliver
instructions to the Company's custodian and/or its agents with respect to the
purchase and redemption of Company shares, the transfer of cash in connection
therewith, and the payments of distributions to shareholders of the Company.
The foregoing list of authorized persons, including those listed on the
attached Schedule 1, 2, and 3, supersedes any and all such lists previously
provided by the Company.
-B2-
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of June,
2003.
Rydex Capital Partners SPhinX Fund
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
I, Xxxxxx X. Xxxxx, Assistant Secretary of the Company, hereby certify
that on this 23rd day of June, 2003, Xxxxx X. Xxxxx is the duly elected
Secretary of the Company and that the signature above is his genuine signature.
Rydex Capital Partners SPhinX Fund
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
-B3-
CUSTODIAN AGREEMENT
SCHEDULE 1
FORUM ADMINISTRATIVE SERVICES, LIMITED LIABILITY COMPANY
Certificate as to
Authorized Persons
The undersigned, being the duly elected Secretary of Administrative
Services, Limited Liability Company, a limited liability company organized under
the laws of the State of Delaware ("FAdS"), does hereby certify that:
1. The below-named persons ("Authorized Persons") are now and have been
the duly elected and qualified officers, employees or agents of FAdS, having
held and as of today hold the respective offices or employment set forth
opposite their names below and that the signatures set forth opposite their
respective names are the genuine signatures of such persons respectively:
Name Office/Position Signature
---- --------------- ---------
Xxxxxxx Xxxxxxxxx Senior Expense Accountant /s/ Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx Financial Analyst /s/ Xxxxxx Xxxxx
Xxxxxxx X. Parenteau Financial Analyst /s/ Xxxxxxx X. Parenteau
Xxxxxx Xxxxxxxx Financial Analyst /s/ Xxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxxx Financial Analyst /s/ Xxxxxxxxx Xxxxxxxx
Xxxxx St. Xxxxx Senior Expense Accountant /s/ Xxxxx St. Xxxxx
Xxxxxxxxx Xxxxxxx Senior Manager /s/ Xxxxxxxxx Xxxxxxx
Trudance X.X. Xxxxx Senior Manager /s/ Trudance X.X. Xxxxx
The foregoing list of Authorized Persons may only be amended by a written
notice executed by two then-current Authorized Persons or by a certificate in
the form hereof delivered by the Secretary or an Assistant Secretary of FAdS
counter-signed by an officer of FSS and delivered to Rydex Capital Partners
SPhinX Fund ("Customer").
2. Any two Authorized Persons have been authorized by FAdS to deliver
instructions to the custodian and/or its agents on behalf of Customer with
respect to the approval of bills for the payment of the expenses of the
Customer.
-1-
3. Customer and its agents may rely on this certificate until further
written notice has been delivered to Customer.
4. This list of Authorized Persons supersedes all those previously
delivered relating to the subject matter hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of June
2003.
/s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx, Secretary
I, Xxxxxxx X. Xxxxxxx, Treasurer of Forum Shareholder Services, Limited
Liability Company, do hereby certify that Xxxxx X. Xxxxxxxxx, whose genuine
signature appears above, is now and has at all times relevant been the duly
elected and qualified Secretary of Forum Shareholder Services, Limited Liability
Company.
Dated: June 23, 2003
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, Treasurer
-2-
CUSTODIAN AGREEMENT
SCHEDULE 2
FORUM TRUST, LIMITED LIABILITY COMPANY
Certificate as to
Authorized Persons
The undersigned, being the duly elected Secretary of Forum Accounting
Services, Limited Liability Company, a limited liability company organized under
the laws of the State of Delaware ("FT"), does hereby certify that:
1. The below-named persons ("Authorized Persons") are now and have been
the duly elected and qualified officers, employees or agents of FT, having held
and as of today hold the respective offices or employment set forth opposite
their names below and that the signatures set forth opposite their respective
names are the genuine signatures of such persons respectively.
Name Office/Position Signature
---- --------------- ---------
Xxxx X. Xxxxxx President /s/ Xxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxxx Treasurer /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx Secretary /s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxxxxxx Xxxxxxx Assistant Treasurer /s/ Xxxxxxxxx Xxxxxxx
----------------------
Xxxx X. Xxxxxx Assistant Secretary /s/ Xxxx X. Xxxxxx
----------------------
Xxxx X. Xxxxxx Assistant Secretary /s/ Xxxx X. Xxxxxx
----------------------
The foregoing list of Authorized Persons may only be amended by a written
notice executed by two then-current Authorized Persons or by a certificate in
the form hereof delivered by the Secretary or an Assistant Secretary of FT
counter-signed by an officer of FT and delivered to Rydex Capital Partners
SPhinX Fund ("Customer").
2. Any two Authorized Persons have been authorized by FAcS to deliver
instructions to the custodian and/or its agents on behalf of Customer with
respect to transfers of securities (stocks and other equity interests of every
type, evidences of indebtedness, other instruments representing same or rights
or obligations to receive, purchase, deliver or sell same and other non-cash
property) on behalf of Customer, and instructions with respect to transfers of
Cash of Customer to or from any money market mutual fund on behalf of Customer.
3. Customer and its agents may rely on this certificate until further
written notice has been delivered to Customer.
-1-
4. This list of Authorized Persons supersedes all those previously
delivered relating to the subject matter hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of June
2003.
/s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx, Secretary
I, Xxxxxxx X. Xxxxxxx, Treasurer of Forum Accounting Services, Limited
Liability Company, do hereby certify that Xxxxx X. Xxxxxxxxx, whose genuine
signature appears above, is now and has at all times relevant been the duly
elected and qualified Secretary of Forum Accounting Services, Limited Liability
Company.
Dated: June 23, 2003
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, Treasurer
-2-
CUSTODIAN AGREEMENT
SCHEDULE 3
FORUM SHAREHOLDER SERVICES, LIMITED LIABILITY COMPANY
Certificate as to
Authorized Persons
The undersigned, being the duly elected Secretary of Forum Shareholder
Services, Limited Liability Company, a limited liability company organized under
the laws of the State of Delaware ("FSS"), does hereby certify that:
1. The below-named persons ("Authorized Persons") are now and have been
the duly elected and qualified officers, employees or agents of FSS, having held
and as of today hold the respective offices or employment set forth opposite
their names below and that the signatures set forth opposite their respective
names are the genuine signatures of such persons respectively:
Name Office/Position Signature
---- --------------- ---------
Xxxxxxx Xxxxxxxx Senior Manager /s/ Xxxxxxx Xxxxxxxx
Xxxx XxXxxxxxxx Cash Management /s/ Xxxx XxXxxxxxxx
Lead Specialist
Xxx Xxxxxxx Cash Management /s/ Xxx Xxxxxxx
Reconciliation Specialist
Xxxxxxxx Xxxx Cash Management /s/ Xxxxxxxx Xxxx
Reconciliation Specialist
Xx Xxxxx Senior Manager /s/ Xx Xxxxx
Xxxxxxx Xxxxxxxxx Senior Expense Accountant /s/ Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx Financial Analyst /s/ Xxxxxx Xxxxx
Xxxxxxx X. Parenteau Financial Analyst /s/ Xxxxxxx X. Parenteau
Xxxxxx Xxxxxxxx Financial Analyst /s/ Xxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxxx Financial Analyst /s/ Xxxxxxxxx Xxxxxxxx
Xxxxx St. Xxxxx Senior Expense Accountant /s/ Xxxxx St. Louis
-1-
The foregoing list of Authorized Persons may only be amended by a written
notice executed by two then-current Authorized Persons or by a certificate in
the form hereof delivered by the Secretary or an Assistant Secretary of FSS
counter-signed by an officer of FSS and delivered to Rydex Capital Partners
SPhinX Fund ("Customer").
2. Any two Authorized Persons have been authorized by FSS to deliver
instructions to the custodian and/or its agents on behalf of Customer with
respect to the purchase and redemption of shares of the Customer, the transfer
of cash in connection therewith, and the payments of distributions to
shareholders.
3. Customer and its agents may rely on this certificate until further
written notice has been delivered to Customer.
4. This list of Authorized Persons supersedes all those previously
delivered relating to the subject matter hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of June
2003.
/s/ Xxxxx X. Xxxxxxxxx
----------------------
Xxxxx X. Xxxxxxxxx, Secretary
I, Xxxxxxx X. Xxxxxxx, Treasurer of Forum Shareholder Services, Limited
Liability Company, do hereby certify that Xxxxx X. Xxxxxxxxx, whose genuine
signature appears above, is now and has at all times relevant been the duly
elected and qualified Secretary of Forum Shareholder Services, Limited Liability
Company.
Dated: June 23, 2003
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, Treasurer
-2-
