CUSTODY AGREEMENT
AGREEMENT made as of by and between Spectra Fund, a corporation
organized and existing under the laws of Massachusetts (hereinafter called the
"Fund"), and National Westminster Bank NJ, a national banking association
organized and existing under the laws of the United States (hereinafter called
the "Custodian").
WITNESSETH:
WHEREAS, the Fund desires that its securities and funds shall be
hereafter held and administered by the Custodian pursuant to the terms of this
agreement:
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Fund and the Custodian agree as follows:
SECTION 1. Definitions
The word "securities" as used herein includes stocks, shares, bonds,
debentures, bills, notes, mortgages, certificates of deposit, bank time
deposits, banker's acceptances, commercial paper, scrip, warrants, participation
certificates, chooses in action, evidences of indebtedness, or other obligations
and any certificates, receipts, warrants or other instruments representing
rights to receive, purchase, or subscribe for the same, or evidencing or
representing any other rights or interests therein, or in any property or
assets.
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The term "Officer's Certificates shall mean a direction, instruction or
certification in writing signed in the name of *he Fund by any two of the
President, a Vice President, the Secretary and the Treasurer of the Fund, or any
other persons duly authorized to sign by the Board of Directors or the Executive
Committee, if any, of the Fund.
SECTION 2. Names. Titles and Signatures of Fund's Officers
The Secretary or an Assistant Secretary of the Fund will certify to the
Custodian the names and the signatures of those persons authorized to sign
Officers' Certificates, as defined in Section 1 hereof, and the names of the
Trustee and the members of the Executive Committee thereof, if any, together
with any changes which may occur from time to time and the Custodian shall be
fully protected in acting in reliance thereon.
SECTION 3. Receipt and Disbursement of Funds
A. The Custodian shall open and maintain a separate account or accounts
in the name of the Fund, subject only to draft or order by the Custodian acting
pursuant to the terms of this Agreement. The Custodian shall hold in such
account or accounts, subject to the provisions hereof, all funds received by it
from or for the account of the Fund. The Fund will deliver or cause to be
delivered to the Custodian all funds owned by the Fund, including cash received
for the issuance of its shares during the period of this Agreement. The
Custodian shall make payments of funds to, or for the account of, the Fund from
such funds only:
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(a) for the purchase of securities for the portfolio of the Funds (i) upon the
delivery of such securities to the Custodian (or to any bank, banking firm or
trust company doing business in the United States and designated by the
Custodian as its sub-custodian or agent for this purpose), registered (if
registerable) in the name of the Fund or of the nominee of the Custodian
referred to in Section 8 or in proper form for transfer, or (ii) in the case of
repurchase agreements entered into between the Fund and the Custodian or other
bank, upon delivery of the receipt evidencing purchase by the Fund of securities
owned by the Custodian or other bank along with written evidence of the
agreement by the Custodian or other bank to repurchase such securities from the
Fund; (b) for the repurchase or redemption of shares of the Fund upon written
advice thereof to the Custodian from the Fund's Transfer Agent, in the amount
specified in such advice; (c) for the payment of interest, dividends, taxes,
management or supervisory fees, or operating expenses (including, without
limitation thereto, trustees' fees and expenses, and fees for legal, accounting
and auditing services); (d) for payments in connection with the conversion,
exchange or surrender of securities owned of subscribed to by the Fund held by
or to be delivered to the Custodian; (e) for the payment to any bank of interest
on or any portion of the principal of any loan made by such bank to the Fund;
(f) for the payment to any person, firm or corporation who has borrowed the
Fund's portfolio securities the amount deposited with the Custodian as
collateral for such borrowing upon the delivery of such
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securities to the Custodian, registered (if registerable) in eve name of the
Fund or of the nominee of the Custodian referred to in Section 8 or in proper
form for transfer or (g) for other proper purposes of the Fund. Before making
any such payment the Custodian shall receive (and may rely upon) an officers
Certificate directing such payment and stating that it is for a purpose
permitted under the terms of items (a), (b), (c), (d), (e) or (f) of this
subsection A. In respect of item (g), the Custodian will take such action only
upon receipt of an Officer's Certificate and a certified copy of a resolution of
the Trustees or of the Executive Committee of the Fund, if any, signed by an
officer of the Fund and certified by the Secretary or an Assistant Secretary,
specifying the amount of such payment, setting forth the purpose for which such
payment is to be made, declaring such purpose to be a proper purpose of the
Fund, and naming the person or persons to whom such payment is to be made. In
respect of item (f), the Custodian shall make payment to the borrower of
securities loaned by the Fund of part of the collateral deposited with the
Custodian upon receipt of an Officers' Certificate stating that the market value
of the securities loaned has declined and specifying the amount to be paid by
the Custodian without receipt or return of any of the securities loaned by the
Fund. In respect of item (a), in the case of repurchase agreements entered into
with a bank which is a member of the Federal Reserve System, the custodian may
transfer funds to the account of such bank, which may be itself, prior to
receipt of the safekeeping receipt and repurchase agreement,
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provided that such documents are received prior to the c use of business on the
same day.
B. Notwithstanding anything herein to the contrary, the Custodian may
at any time or times, appoint (and may at any time remove) any other bank or
trust company as its subcustodian or agent to carry out such of the provisions
of Subsections A of this Section 3 as the Fund may from time to time request;
provided, however, that the appointment of such sub-custodian or agent shall not
relieve the custodian of any of its responsibilities hereunder; and provided,
further, that the Fund will not request the appointment of any bank as
sub-custodian unless it meets the requirements of Section 26 of the Investment
Company Act.
C. The Custodian is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money received by the
Custodian for the account of the Fund.
SECTION 4. Receipt of Securities
A. The Custodian shall hold in a separate account, and physically
segregated at all times from those of any other person, firms, corporations or
trust, pursuant to the provisions hereof, all securities received by it from or
for the account of the Fund and the Fund will deliver or cause to be delivered
to the Custodian all securities owned by the Fund. All such securities are to be
held or disposed of by the Custodian for, and subject at all times to the
instructions of, the Fund pursuant to the terms of this Agreement. The Custodian
shall have no power or authority to assign, hypothecate, pledge or otherwise
dispose of any such
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securities and investments, except pursuant to the directive of the Fund and
only for the account of the Fund as set forth in Section 5 of this Agreement.
B. Notwithstanding anything herein to the contrary, the Custodian may
at any time or times, appoint (and may at any time remove) any other bank or
trust company as its subcustodian or agent to carry out such of the provisions
of Subsection A of this Section 4 and of Section 5 of this Agreement, as the
Fund may from time to time request, provided, however, that the appointment of
such sub-custodian or agent shall not relieve the Custodian of any of its
responsibilities hereunder, and provided, further, that the Fund will not
request the appointment of any bank as subcustodian unless it meets the
requirements of Section 26 of the Investment Company Act.
SECTION 5. Transfer. Exchange. Redelivery. etc. of Securities.
The Custodian shall have sole power to release or deliver any
securities of the Fund held by it pursuant to this Agreement. The Custodian
agrees to transfer, exchange or deliver securities held by it hereunder only:
(a) for sales of such securities for the account of the Fund upon receipt by the
Custodian of payment therefor, (b) when such securities mature or are called,
redeemed or retired or otherwise become payable, (c) for examination by any
broker selling any such securities in accordance with "street delivery" custom,
(d) in exchange for or upon conversion into other securities alone or other
securities and cash whether pursuant to any plan of merger, consolidation,
reorganization, recapitalization
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or readjustment, or otherwise, (e) upon conversion of such securities pursuant
to their terms into other securities, (f) upon exercise of subscription,
purchase or other similar rights represented by such securities, (g) for the
purpose of exchanging interim receipts for temporary securities for definitive
securities, (h) for the purpose of effecting a loan of the Fund's portfolio
securities to any person, firm, corporation or trust upon the receipt by the
Custodian of cash or cash equivalent collateral at least equal to the market
value of the securities loaned, (i) to any bank for the purpose of
collateralizing the obligation of the Fund to repay any moneys borrowed by the
Fund from such bank; provided, however, that the Custodian may at the option of
such lending bank keep such collateral in its possession, subject to the rights
of such bank given to it by virtue of any promissory note or agreement executed
and delivered by the Fund to such bank, or (j) for other proper purposes of the
Fund. As to any deliveries made by the Custodian pursuant to items (a), (b),
(c), (d), (e), (f), (g), and (h), securities or funds receivable in exchange
therefor shall be deliverable to the Custodian. Before making any such transfer,
exchange or delivery, the Custodian shall receive (and may rely upon) an
Officers' Certificate requesting such transfer, exchange, or delivery and
stating that it is for a purpose permitted under the terms of items (a), (b),
(c), (d), (e), (f), (g), (h), or (i) of this Section 5, and, in respect of item
(j), upon receipt of an Officers' Certificate and a certified copy of a
resolution of the Trustees or of the Executive Committee, if any,
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signed by an officer of the Fund and certified by its Secretary or an Assistant
Secretary, specifying the securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such purpose to be a proper
purpose of the Fund, and naming the person or persons to whom delivery of such
securities shall be made. In respect of item (h), the Officers' Certificate
shall state the market value of the securities to be loaned and the
corresponding amount of collateral to be deposited with the Custodian;
thereafter, upon receipt of an Officers' Certificate stating that the market
value of the securities loaned has increased and specifying the amount of
increase, the Custodian shall collect from the borrower additional cash
collateral in such amount.
SECTION 6. Federal Reserve Book-Entry System
Notwithstanding any other provisions of this Agreement, it is
expressly understood and agreed that the Custodian is authorized in the
performance of its duties hereunder to deposit in the book entry deposit system
operated by the Federal Reserve Bank (the "System"), United States government,
instrumentality and agency securities and any other securities deposited in the
System ("Securities") and to use the facilities of the System, as permitted by
Rule 17f-4 under the Investment Company Act of 1940, in accordance with the
following terms and provisions:
(a) The Custodian may keep securities of the Fund in the System
provided that such Securities are represented in an account ("Account") of the
Custodian's in the System which shall not
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include any assets of the Custodian other than assets held in a fiduciary or
custodian capacity.
(b) The records of the Custodian with respect to the Fund's
participation in the System through the Custodian shall identify by book entry
Securities belonging to the Fund which are included with other securities
deposited in the Account and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Fund and employees and agents of the Securities and
Exchange Commission.
(c) The Custodian shall pay for securities purchased for the account
of the Fund upon: (i) receipt of advice from the System that such securities
have been transferred to the Account and (ii) the making of an entry on the
records of the Custodian to reflect such payment and transfer for the account of
the Fund. The Custodian shall transfer Securities sold for the account of the
Fund upon: (i) receipt of advice from the System that payment for such
securities has been transferred to the Account an (ii) the making of an entry on
the records of the Custodian to reflect such transfer and payment for the
account of the Fund. The Custodian shall send the Fund a confirmation of any
transfers to or from the account of the Fund.
(d) The Custodian will provide the Fund with any report obtained by
the Custodian on the System's accounting system, internal accounting control
and procedures for safekeeping securities deposited in the System. The
Custodian will provide the
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Fund, at such times as the Fund may reasonably require, with reports by
independent public accountants on the accounting system, internal accounting
control and procedures for safeguarding securities including Securities
deposited in the System relating to the services provided by the Custodian under
this Agreement; such reports shall detail material inadequacies disclosed by
such examination, and, if there are no such inadequacies, shall so state, and
shall be of such scope and in detail as the Fund may reasonably require and
shall be of sufficient scope to provide reasonable assurance that any material
inadequacies would be disclosed.
SECTION 6A. Use of Depository Trust Company Facilities
Notwithstanding any other provisions of the Agreement, the Custodian
may, in connection with transactions in portfolio securities by the Fund, use
the facilities of the Depository Trust Company ("DTC"), as permitted by Rule
17f-4 under the Investment Company Act of 1940, in accordance with the following
terms and provisions:
(a) DTC may be used to receive and hold eligible securities owned by
the Fund; (b) payment for securities purchased may be made through the clearing
medium employed by DTC for transactions of participants acting through it; (c)
securities of the Fund deposited in DTC will at all times be segregated from any
assets and cash controlled by the Custodian in other than a fiduciary or
custodian capacity but may be commingled with other assets held in such
capacity. Subject to the provisions of the Agreement with
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regard to "Officers' Certificates", the Custodian xxxx pay cut money only upon
receipt of securities or notification thereof and will deliver securities only
upon the receipt of money or notification thereof; (d) all books and records
maintained by the Custodian which related to the Fund's participation in DTC
shall identify by book entry securities belonging to the Fund which are
deposited in DTC and shall at all times during the Custodian's regular business
hours be open to inspection by the Fund's duly authorized officers, employees,
agents and auditors, and the Fund will be furnished with all the information in
respect of the services rendered to it as it may require; (e) the Custodian will
make available to the Fund copies of any internal control reports concerning DTC
to it by either internal or external auditors within ten days after receipt of
such a report by the Custodian; and (f) confirmations of transactions using the
facilities of DTC shall be provided as set forth in Rule 17f-4.
SECTION 7. Custodians Acts Without Instructions
Unless and until Custodian receives an Officer's Certificate to the
contrary, the Custodian shall:
(a) Present for payment all coupons and other income items held by it
for the account of the Fund which call for payment upon presentation and hold
the funds received by it upon such payment for the account of the Fund: (b)
collect interest and cash dividends received, with notice to the Fund, for the
account of the Fund: (c) hold for the account of the Fund hereunder all stock
dividends, rights and similar securities issued with respect to any
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securities held by in hereunder; (d) execute as agent on behalf of the Fund all
necessary ownership certificates required by the Internal Revenue Code or the
Income Tax Regulations of the United States Treasury Department or under the
laws of any state now or hereafter in effect, inserting the Fund's name on such
certificates as the owner of the securities covered thereby, to the extent At
may lawfully do so; (e) transmit promptly to the Fund all reports, notices and
other written information received by the Custodian from or concerning issuers
of the Fund's portfolio securities; and (f) collect from the borrower the
securities loaned and delivered by the Custodian pursuant to item (h) of Section
5 hereof, any interest or cash dividends paid on such securities, and all stock
dividends, rights an similar securities issued with respect to any such loaned
securities.
With respect to securities of foreign issue, it is expected that the
Custodian will use its best efforts to effect collection of dividends, interest
and other income, and to notify the Fund of any call for redemption, offer of
exchange, right of subscription, reorganization, or other proceedings affecting
such securities, or any default in payments due thereon. It is understood,
however, that the Custodian shall be under no responsibility for any failure or
delay in effecting such collections or giving such notice with respect to
securities of foreign issue, regardless of whether or not the relevant
information is published in any financial service available to it unless such
failure or delay is due to its negligence; however, this sentence shall not be
construed as
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creating any such responsibility with respect to securities or. non-foreign
issue, other than such responsibility as may be part of the general
responsibility of the Custodian as stated in this Section 7. Collections of
income in foreign currency are, to the extent possible, to be converted into
United States dollars unless otherwise instructed in writing, and in effecting
such conversion the Custodian may use such methods or agencies as it may see fit
it, including the facilities of its own foreign division at customary rates. All
risk and expenses incident to such collection and conversion is for the account
of the Fund and the Custodian shall have no responsibility for fluctuations in
exchange rates affecting any such conversion.
SECTION 8. Registration of Securities
Except as otherwise directed by an Officer's Certificate, the Custodian
shall register all securities, except such as are in bearer form, in the name of
a registered nominee of the Custodian as defined in the Internal Revenue Code
and any Regulation of the Treasury Department issued thereunder or in any
provision of any subsequent Federal tax law exempting such transaction from
liability for stock transfer taxes, and shall execute and deliver such
certificates in connection therewith as may be required by such laws or
Regulations or under the laws of any State. The Custodian shall ensure that the
specific securities held by it hereunder shall be at all times identifiable in
its records.
The Fund shall from time to time furnish to the Custodian appropriate
instruments to enable the Custodian hold or deliver in
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proper form for transfer, or to register in the name of .~s registered nominee,
any securities which it may hold for the account of the Fund and which may from
time to time be registered in the name of the Fund.
SECTION 9. Voting and Other Actions
Neither the Custodian nor any nominee of the Custodian shall vote any
of the securities held hereunder by or for the account of the Fund, except in
accordance with the instructions contained in an Officers' Certificate. The
Custodian shall, promptly after receipt, execute and deliver, or cause to be
executed and delivered, to the Fund all notices, proxies and proxy soliciting
materials with relation to such securities (excluding any securities loaned and
delivered by the Custodian pursuant to item (h) of Section 5 hereof), such
proxies to be executed by the registered holder such securities (if registered
otherwise than in the name of the Fund), But without indicating the manner in
which such proxies are to be voted.
SECTION 10. Transfer Tax and Other Disbursements
The Fund shall pay or reimburse the Custodian from time to time for any
transfer taxes payable upon transfers of securities made hereunder and for all
other necessary and proper disbursements and expenses made or incurred by the
Custodian in the performance of this Agreement.
The Custodian shall execute and deliver such certificates in connection
with securities delivered to it or by it under this Agreement as may be required
under the provision of the Internal
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Revenue Code and any Regulations of the Treasury Department issued thereunder,
or under the laws of any State, to exempt from taxation any exemptible transfer
and/or deliveries of any such securities. SECTIONS 11. Concerning the Custodian
A. The Custodian shall be paid as compensation for its services
pursuant to this Agreement such compensation as may from time to time be agreed
upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith
upon any Officers' Certificate as herein defined or certified copy of any
resolution of the Trustees or of the Executive Committee, if any, and may rely
on the genuineness of any such document which it may in good faith believe to
have been validly executed.
C. The Custodian shall not be liable for any loss or damage, resulting
from its action or omission to act or otherwise, except for any such loss or
damage arising out of its own negligence or willful misconduct and except that
the Custodian shall be responsible for the acts of any subcustodian or agent
appointed hereunder. The Custodian may apply for and obtain the advice and
opinion of counsel to the Fund or of its own counsel with respect to questions
of law, and shall be fully protected with respect to anything done or omitted by
it in good faith, in conformity with such advice or opinion.
D. 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:
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(a) The validity of the issue of any securities purchased by
or for the Fund, the legality of the purchase thereof, or the propriety
of the amount paid therefor;
(b) The legality of the issue or sale of any securities by or
for the Fund, or the propriety of the amount for which the same are
sold;
(c) The legality of the issue or sale of any shares of the
Fund, or the sufficiency of the amount to be received thereof;
(d) The legality of the redemption of any shares of the Fund,
or the propriety of the amount to be paid therefor;
(e) The legality of the declaration of any dividend or
distribution by the Fund, or the legality of the issue of any shares of
the Fund in payment of any dividend or distribution in shares;
(f) The legality of the delivery of any securities held for
the Fund for the purpose of collateralizing the obligation of the Fund
to repay any moneys borrowed by the Fund; or
(g) The legality of the delivery of any securities held for
the Fund for the purpose of lending said securities to any person, firm
or corporation.
E. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount, if the securities upon which such
amount is payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such action by
written instructions signed in the name of the Fund by one of its executive
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officers, and (ii) it shall be assured to its satisfaction of reimbursement of
its costs and expenses in connection with any such action.
F. The Custodian shall not be under any duty or obligation to ascertain
whether any securities at any time delivered to or held by it for the account of
the Fund, are such as may properly be held by the Fund under the provisions of
its Declaration of Fund as amended from time to time.
G. The Fund agrees to indemnify and hold harmless the Custodian and its
nominee from all taxes, charges, expenses, assessments, claims, liabilities, and
losses (including counsel fees) incurred or assessed against it or its nominee
in connection with the performance of this Agreement, except such as may arise
from its or its nominee's own negligent action, negligent failure to act or
willful misconduct. The Custodian is authorized to charge any account of the
Fund for such items. In the event of any advance of funds for any purpose made
by the Custodian resulting from orders or instructions of the Fund, or in the
event that the Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection with the
performance of this Agreement, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the Fund shall be security
therefor.
H. In the event that, pursuant to this Agreement, the Fund instructs
the Custodian to pay for securities on behalf of the
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Fund, the Fund hereby grants to the Custodian a security interest in such
securities, until the Custodian has been reimbursed by the Fund in immediately
available funds. The Fund's written instructions designating the securities to
be paid shall be considered the requisite description and designation of the
securities pledged to the Custodian for purposes of the requirements of the
Uniform Commercial Code.
SECTION 12. Reports by the Custodian
A. The Custodian shall furnish the Fund daily with a statement
summarizing all transactions and entries for the account of the Fund. The
Custodian shall furnish the Fund at the end of every month with a list of the
portfolio securities held by it as Custodian for the Fund, adjusted for all
commitments confirmed by the Fund as of such time certified by a duly authorized
officer of the Custodian. The books and records of the Custodian pertaining to
its actions under this Agreement shall be open to inspection and audit at
reasonable times by officers of the Fund, its independent accountants and
officers of its investment advisors.
B. The Custodian will maintain such books and records relating to
transactions effected by it as are required by the Investment Company Act of
1940, as amended from time to time and any rule or regulation thereunder; or by
any other applicable provision of the law to be maintained by the Fund or its
Custodian, with respect to such transactions, and preserving or causing to be
preserved, any such books and records for such periods as may be required by any
such rule or regulations.
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SECTION 13. Termination or Assignment
This agreement may be terminated by the Fund, or by the Custodian, on
sixty (60) days notice, given in writing and sent by registered mail to the
Custodian, or to the Fund, as the case may be, at the address hereinafter set
forth. Upon any termination of this Agreement, pending appointment of a
successor to the Custodian or a vote of the shareholders of the Fund to dissolve
or to function without a Custodian of its funds, securities and other property,
the Custodian shall not deliver funds, securities or other property of the Fund
to the Fund, but may deliver them to a bank or trust company of its own
selection having an aggregate capital, surplus and undivided profits, as shown
by its last published report of not less than ten million dollars ($10,000,000)
as a Custodian for the Fund to be held under terms similar to those of this
Agreement; provided, however, that the Custodian shall not be required to make
any such delivery or payment until full payment shall have been made by the Fund
of all liabilities constituting a charge on or against the properties then held
by the Custodian or on or against the Custodian, and until full payment shall
have been made to the Custodian of all its fees, compensations, costs and
expenses, subject to the provisions of Section 11 of this Agreement.
SECTION 14. Miscellaneous
A. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be
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sufficiently given if addressed to the Custodian and mailed or delivered to it
at its office at 00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, or at such
other place as the Custodian may from time to time designate in writing.
B. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund, shall be sufficiently given if addressed
to the Fund and mailed or delivered to it at its office at 00 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as the Fund may from time to time
designate In writing.
C. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the same formality as this
Agreement, and authorized or approved by a resolution of the Board of
Directors.
D. This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns, provided, however,
that this Agreement shall not be assignable by the Fund without the written
consent of the Custodian or by the Custodian without the written consent of the
Fund, authorized or approved by a resolution of its Directors.
E. 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 but one instrument.
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F. This Agreement and the rights and obligations of the Fired and the
Custodian hereunder shall be construed and interpreted in accordance with the
laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written by their respective officers
thereunto duly authorized.
Executed in several counterparts, each of which is an original.
NATIONAL WESTMINSTER BANK NJ
Attest
___________________________ By:___________________________________
SPECTRA FUND
Attest
By:________________________ By:___________________________________
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