1
Exhibit (g)(3)
CUSTODIAN AGREEMENT
BETWEEN
REPUBLIC FUNDS
AND
REPUBLIC NATIONAL BANK OF NEW YORK
2
TABLE OF CONTENTS
Page
1. Bank Appointed Custodian.............................................1
2. Definitions..........................................................1
2.1 Authorized Person.............................................1
2.2 Security......................................................1
2.3 Portfolio Security............................................1
2.4 Officers' Certificate.........................................2
2.5 Book-Entry System.............................................2
2.6 Depository....................................................2
2.7 Proper Instructions...........................................2
3. Separate Accounts....................................................3
4. Certification as to Authorized Persons...............................3
5. Custody of Cash......................................................3
5.1 Purchase of Securities........................................3
5.2 Redemptions...................................................4
5.3 Distributions and Expenses of Fund............................4
5.4 Payment in Respect of Securities..............................4
5.5 Repayment of Loans............................................4
5.6 Repayment of Cash.............................................4
5.7 Foreign Exchange Transactions.................................4
5.8 Other Authorized Payments.....................................5
5.9 Termination...................................................5
6. Securities...........................................................5
6.1 Segregation and Registration..................................5
6.2 Voting and Proxies............................................5
6.3 Book-Entry System.............................................5
6.4 Use of a Depository...........................................7
6.5 Use of Book-Entry System for Commercial Paper.................8
6.6 Use of Immobilization Programs................................8
6.7 Eurodollar CDs................................................8
6.8 Options and Futures Transactions..............................8
(a) Puts and Calls Traded on Securities Exchanges,
NASDAQ or Over-the-Counter............................8
(b) Puts, Calls, and Futures Traded on
Commodities Exchanges.................................9
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6.9 Segregated Account............................................9
6.10 Interest Bearing Call or Time Deposits.......................10
6.11 Transfer of Securities.......................................11
7. Redemptions.........................................................12
8. Merger, Dissolution, etc. of Fund...................................13
9. Actions of Bank Without Prior Authorization.........................13
10. Collections and Defaults............................................13
11. Maintenance of Records and Accounting Services......................14
12. Fund Evaluation.....................................................15
13. Concerning the Bank.................................................15
13.1 Performance of Duties; Standard of Care......................15
13.2 Agents and Subcustodians with Respect to Property
of the Fund Held in the United States........................17
13.3 Duties of the Bank with Respect to Property Held
Outside of the United States.................................17
13.4 Insurance....................................................17
13.5 Fees and Expenses of Bank....................................17
13.6 Advances by Bank............................................18
14. Termination.........................................................18
15. Confidentiality.....................................................19
16. Notices.............................................................19
17. Amendments..........................................................20
18. Parties.............................................................20
19. Governing Law.......................................................20
20. Counterparts........................................................20
21. Limitation of Liability.............................................20
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CUSTODIAN AGREEMENT
AGREEMENT made as of this 1st day of December, 1997, between REPUBLIC
FUNDS, a Massachusetts business trust (the "Fund"), and REPUBLIC NATIONAL BANK
OF NEW YORK (the "Bank").
The Fund, an open-end management investment company, desires to place
and maintain its portfolio securities and cash (except for those securities and
cash held outside the United States in accordance with Section 13.3) in the
custody of the Bank. The Bank has at least the minimum qualifications required
by Section 17(f)(1) of the Investment Company Act of 1940 (the "1940 Act") to
act as custodian of the portfolio securities and cash of the Fund, and has
indicated its willingness to so act, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. BANK APPOINTED CUSTODIAN. The Fund hereby appoints the Bank as custodian of
its portfolio securities and cash delivered to the Bank as hereinafter described
and the Bank agrees to act as such upon the terms and conditions hereinafter set
forth.
2. DEFINITIONS. Whenever used herein, the terms listed below will have the
following meaning:
2.1 AUTHORIZED PERSON. Authorized Person will mean any of the persons
duly authorized to give Proper Instructions or otherwise act on behalf of the
Fund by appropriate resolution of its Board of Directors or the Board of
Trustees, as the case may be ("the Board"), and set forth in a certificate as
required by Section 4 hereof.
2.2 SECURITY. The term security as used herein will have the same
meaning as when such term is used in the Securities Act of 1933, as amended,
including, without limitation, any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any profit
sharing agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest in oil,
gas, or other mineral rights, any put, call, straddle, option, or privilege on
any security, certificate of deposit, or group or index of securities (including
any interest therein or based on the value thereof), or any put, call, straddle,
option, or privilege entered into on a national securities exchange relating to
a foreign currency, or, in general, any interest or instrument commonly known as
a "security", or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guarantee of, or warrant or right to
subscribe to, or option contract to purchase or sell any of the foregoing, and
futures, forward contracts and options thereon.
2.3 PORTFOLIO SECURITY. Portfolio Security will mean any Security owned
by the Fund.
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2.4 OFFICERS' CERTIFICATE. Officers' Certificate will mean, unless
otherwise indicated, any request, direction, instruction, or certification in
writing signed by any two Authorized Persons of the Fund.
2.5 BOOK-ENTRY SYSTEM. Book-Entry System shall mean the Federal
Reserve-Treasury Department Book Entry System for United States government,
instrumentality and agency securities operated by the Federal Reserve Bank, its
successor or successors and its nominee or nominees.
2.6 DEPOSITORY. Depository shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934 ("Exchange
Act"), its successor or successors and its nominee or nominees. The term
"Depository" shall further mean and include any other person authorized to act
as a depository under the 1940 Act, its successor or successors and its nominee
or nominees, specifically identified in a certified copy of a resolution of the
Board.
2.7 PROPER INSTRUCTIONS. (a) Proper Instructions shall mean (i)
instructions (which may be continuing instructions) regarding the purchase or
sale of Portfolio Securities, and payments and deliveries in connection
therewith, given by an Authorized Person, such instructions to be given in such
form and manner as the Bank and the Fund shall agree upon from time to time, and
(ii) instructions (which may be continuing instructions) regarding other matters
given by one or more Authorized Persons. Without limiting the generality of the
foregoing, Proper Instructions shall specifically indicate the specific series
or portfolio of the Fund to which they relate.
(b) Oral instructions will be considered Proper Instructions if
the Bank reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. The Fund shall
cause all oral instructions to be promptly confirmed in writing.
(c) Upon receipt of an Officers' Certificate as to the
authorization by the Board accompanied by a detailed description of procedures
approved by the Fund, Proper Instructions may include communication effected
directly between electro-mechanical or electronic devices.
(d) The Bank shall act upon and comply with any subsequent Proper
Instruction which modifies a prior instruction and the sole obligation of the
Bank with respect to any follow-up or confirmatory instruction shall be to make
reasonable efforts to detect any discrepancy between the original instruction
and such confirmation and to report such discrepancy to the Fund. The Fund shall
be responsible, at the Fund's expense, for taking any action, including any
reprocessing, necessary to correct any such discrepancy or error, and to the
extent such action requires the Bank to act the Fund shall give the Bank
specific Proper Instructions as to the action required.
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(e) The Bank shall have no liability hereunder for acting in
accordance with Proper Instructions.
3. SEPARATE ACCOUNTS. If the Fund has more than one series or portfolio, the
Bank will segregate the assets of each series or portfolio to which this
Agreement relates into a separate account for each such series or portfolio
containing the assets of such series or portfolio (and all investment earnings
thereon) upon receipt of Proper Instructions as to which series or portfolio
such asset should be credited. Unless the context otherwise requires, any
reference in this Agreement to any actions to be taken by the Fund shall be
deemed to refer to the Fund acting on behalf of one or more of its series or
portfolios, any reference in this Agreement to any assets of the Fund,
including, without limitation, any Portfolio Securities and cash and earnings
thereon, shall be deemed to refer only to assets of the applicable series or
portfolio, any duty or obligation of the Bank hereunder to the Fund shall be
deemed to refer to duties and obligations with respect to the individual series
or portfolio, and any obligation or liability of the Fund hereunder shall be
binding only with respect to the individual series or portfolio, and shall be
discharged only out of the assets of such series or portfolio.
4. CERTIFICATION AS TO AUTHORIZED PERSONS. The Secretary or Assistant Secretary
of the Fund will at all times maintain on file with the Bank his or her
certification to the Bank, in such form as may be acceptable to the Bank, of (i)
the names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any change
in the information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Fund will sign a new or amended certification setting forth the
change and the new, additional or omitted names or signatures. The Bank will be
entitled to rely and act upon any Officers' Certificate given to it by the Fund
which has been signed by Authorized Persons named in the most recent
certification.
5. CUSTODY OF CASH. As custodian for the Fund, the Bank will open and maintain a
separate account or separate accounts in the name of the Fund or in the name of
the Bank, as Custodian of the Fund, and will deposit to the account of the Fund
all of the cash of the Fund, including borrowed funds, delivered to the Bank,
except for cash held by a subcustodian appointed pursuant to Section 13.2
hereof, subject only to draft or order by the Bank acting pursuant to the terms
of this Agreement. Notwithstanding the provisions of Section 3 hereof, the Bank
may maintain a single cash account for all of the Fund's series and portfolios,
provided that the Bank maintains appropriate sub-accounting records to identify
the cash belonging to each separate series or portfolio. Upon receipt by the
Bank of Proper Instructions requesting such payment, designating the payee or
the account or accounts to which the Bank will release funds for deposit, and
stating that it is for a purpose permitted under the terms of this Section 5,
Subsections 6.7, 6.8, 6.9 or 6.10 or Section 8 and specifying the applicable
section or subsection or permitted purpose, or describing the purpose of the
transaction with sufficient particularity to permit the Bank to ascertain the
applicable section or subsection, the Bank will make payments of cash held for
the accounts of the Fund.
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5.1 PURCHASE OF SECURITIES. Upon the purchase of securities for the
Fund, against contemporaneous receipt of such securities by the Bank or against
delivery of such securities to the Bank in accordance with generally accepted
settlement practices and customs in the jurisdiction or market in which the
transaction occurs, registered in the name of the Fund or in the name of, or
properly endorsed and in form for transfer to, the Bank, or a nominee of the
Bank, or receipt for the account of the Bank pursuant to the provisions of
Section 6 below, each such payment to be made at the purchase price (including,
where applicable, brokerage commissions) shown on a broker's confirmation (or
other transaction report in the case of securities maintained in the Book Entry
System) of purchase of the securities received by the Bank before such payment
is made, as confirmed in the Proper Instructions received by the Bank before
such payment is made.
5.2 REDEMPTIONS. In such amount as may be necessary for the repurchase
or redemption of common shares of the Fund offered for repurchase or redemption
as specified in Proper Instructions from the Fund's transfer agent in accordance
with Section 7 of this Agreement.
5.3 DISTRIBUTIONS AND EXPENSES OF FUND. For the payment on the
account of the Fund of dividends or other distributions to shareholders as may
from time to time be declared by the Board, interest, taxes, management or
supervisory fees, distribution fees, fees of the Bank for its services hereunder
and reimbursement of the expenses and liabilities of the Bank as provided
hereunder, fees of any transfer agent, fees for legal, accounting, and auditing
services, or other operating expenses of the Fund.
5.4 PAYMENT IN RESPECT OF SECURITIES. For payments in connection with
the conversion, exchange or surrender of Portfolio Securities or securities
subscribed to by the Fund held by or to be delivered to the Bank.
5.5 REPAYMENT OF LOANS. To repay loans of money made to the Fund, but,
in the case of final payment, only upon redelivery to the Bank of any Portfolio
Securities pledged or hypothecated therefor.
5.6 REPAYMENT OF CASH. To repay the cash delivered to the Fund for the
purpose of collateralizing the obligation to return to the Fund certificates
borrowed from the Fund representing Portfolio Securities, but only upon
redelivery to the Bank of such borrowed certificates.
5.7 FOREIGN EXCHANGE TRANSACTIONS. For payments in connection with
foreign exchange contracts or options to purchase and sell foreign currencies
for spot or future delivery which may be entered into by the Bank on behalf of
the Fund upon the receipt of Proper Instructions, such Proper Instructions to
specify the currency broker or banking institution (which may be the Bank, or
any other subcustodian or agent hereunder, acting as principal) with which the
contract or option is made.
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5.8 OTHER AUTHORIZED PAYMENTS. For other authorized transactions of the
Fund, or other obligations of the Fund incurred for proper Fund purposes;
provided that before making any such payment the Bank will also receive a
certified copy of a resolution of the Board signed by an Authorized Person
(other than the Person certifying such resolution) and certified by its
Secretary or Assistant Secretary, naming the person or persons to whom such
payment is to be made, and either describing the transaction for which payment
is to be made and declaring it to be an authorized transaction of the Fund, or
specifying the amount of the obligation for which payment is to be made, setting
forth the purpose for which such obligation was incurred and declaring such
purpose to be a proper corporate purpose.
5.9 TERMINATION. Upon the termination of this Agreement as hereinafter
set forth pursuant to Section 8 or Section 14 of this Agreement.
6. SECURITIES.
6.1 SEGREGATION AND REGISTRATION. Except as otherwise provided herein,
and except for securities to be delivered to any subcustodian appointed pursuant
to Section 13.2 hereof, the Bank as custodian, will receive and hold pursuant to
the provisions hereof, in a separate account or separate accounts and segregated
at all times from those of other persons, any and all Portfolio Securities which
may now or hereafter be delivered to it by or for the account of the Fund.
Notwithstanding the provisions of Section 3 hereof, the Bank may maintain a
single account for all of the Fund's series and portfolios, provided that the
Bank maintains appropriate sub-accounting records to identify the Portfolio
Securities belonging to each separate series or portfolio. All such Portfolio
Securities will be held or disposed of by the Bank in accordance with, and
subject at all times to, Proper Instructions. Subject to the specific provisions
herein relating to Portfolio Securities that are not physically held by the
Bank, the Bank will register all Portfolio Securities (unless otherwise directed
by Proper Instructions or an Officers' Certificate) in the name of a nominee of
the Bank, and will execute and deliver all such certificates in connection
therewith as may be required under applicable laws and regulations.
The Fund will furnish to the Bank appropriate instruments to enable it
to hold or deliver in proper form for transfer, or to register in the name of
its nominee, any Portfolio Securities which may from time to time be registered
in the name of the Fund.
6.2 VOTING AND PROXIES. Neither the Bank nor any nominee of the Bank
will vote any of the Portfolio Securities held hereunder, except in accordance
with Proper Instructions or an Officers' Certificate. The Bank will execute and
deliver, or cause to be executed and delivered, to the Fund (or the applicable
investment adviser) all notices, proxies and proxy soliciting materials received
by the Bank with respect to such Portfolio Securities, such proxies to be
executed by the registered holder of 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.
6.3 BOOK-ENTRY SYSTEM. Subject to the authority of the Board to withdraw
its approval for the Bank's use of the Book-Entry System, which withdrawal of
approval shall be reflected in an Officers' Certificate delivered to the Bank:
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(a) The Bank may keep Portfolio Securities in the Book-Entry
System provided that such Portfolio Securities are represented in an account
("Account") of the Bank (or its agent) in such System which shall not include
any assets of the Bank (or such agent) other than assets held as a fiduciary,
custodian, or otherwise for customers;
(b) The records of the Bank (and any such agent) with respect to
the Fund's participation in the Book-Entry System through the Bank (or any such
agent) will identify by book entry Portfolio Securities which are included with
other securities deposited in the Account and shall at all times during the
regular business hours of the Bank (or such agent) be open for inspection by
duly authorized officers, employees or agents of the Fund upon reasonable prior
notice. Where Portfolio Securities are transferred to the Account, the Bank
shall also, by book entry or otherwise, identify as belonging to the Fund a
quantity of securities in fungible bulk of securities (i) registered in the name
of the Bank or its nominee, or (ii) shown on the Bank's account on the books of
the Federal Reserve Bank;
(c) The Bank (or its agent) shall pay for Portfolio Securities
purchased for the account of the Fund or shall pay cash collateral against the
return of Portfolio Securities loaned by the Fund upon receipt of advice from
the Book-Entry System that such Portfolio Securities have been transferred to
the Account against payment of the purchase price or cash collateral. The Bank
shall make an entry on the records of the Bank (or its agent) to reflect such
payment and transfer for the account of the Fund.
(d) The Bank (or its agent) shall transfer securities sold or
loaned for the account of the Fund upon receipt of advice from the Book-Entry
System that payment for securities sold or payment of the initial cash
collateral has been transferred to the Account against the delivery of Portfolio
Securities loaned by the Fund. The Bank shall make an entry on the records of
the Bank (or its agent) to reflect such transfer and payment for the account of
the Fund.
(e) Copies of all advices from the Book-Entry System of transfers
of Securities for the account of the Fund shall be maintained for the Fund by
the Bank and shall be provided to the Fund at its request. The Bank shall send
the Fund a confirmation, as defined by Rule 17f-4 under the 1940 Act, of any
transfers to or from the account of the Fund;
(f) Upon request of the Fund, the Bank will promptly provide the
Fund with any report obtained by the Bank or its agent on the Book-Entry
System's accounting system, internal accounting control and procedures for
safeguarding securities deposited in the Book-Entry System; and
(g) The Bank shall be liable to the Fund for any loss or damage
to the Fund resulting from use of the Book-Entry System by reason of any gross
negligence, willful misfeasance or bad faith of the Bank or any of its agents or
of any of its or their employees or from any reckless disregard by the Bank or
any such agent of its duty to use its best efforts to enforce such rights as it
may have against the Book-Entry System; at the election of the Fund and subject
to the terms of the Bank's participation in the Book-Entry System, the Fund
shall be
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entitled to be substituted for the Bank in any claim against the Book-Entry
System or any other person which the Bank or its agent may have as a consequence
of any such loss or damage if and to the extent that the Fund has not been made
whole for any loss or damage;
6.4 USE OF A DEPOSITORY. Subject to the authority of the Board to
withdraw its approval for the Bank's use of a Depository, which withdrawal of
approval shall be reflected in an Officer's Certificate delivered to the Bank:
(a) The Bank may use a Depository to hold, receive, exchange,
release, lend, deliver and otherwise deal with Portfolio Securities including
stock dividends, rights and other items of like nature, and to receive and remit
to the Bank on behalf of the Fund all income and other payments thereon and to
take all steps necessary and proper in connection with the collection thereof;
(b) Registration of Portfolio Securities may be made in the name
of any nominee or nominees used by such Depository;
(c) Payment for securities purchased and sold may be made through
the clearing medium employed by such Depository for transactions of participants
acting through it. Upon any purchase of Portfolio Securities, payment will be
made only against delivery of the securities to or for the account of the Fund;
and the Fund shall pay cash collateral against the return of Portfolio
Securities loaned by the Fund against delivery of the Portfolio Securities to or
for the account of the Fund; and upon any sale of Portfolio Securities, delivery
of the securities will be made only against payment therefor or, in the event
Portfolio Securities are loaned, delivery of Portfolio Securities will be made
only against receipt of the initial cash collateral to or for the account of the
Fund; and
(d) The Bank shall be liable to the Fund for any loss or damage
to the Fund resulting from use of a Depository by reason of any gross
negligence, willful misfeasance or bad faith of the Bank or its employees or
from any reckless disregard by the Bank of its duty to use its best efforts to
enforce such rights as it may have against a Depository. In this connection, the
Bank shall use its best efforts to ensure that:
(i) The Depository obtains replacement of any certificated
Portfolio Security deposited with it in the event such Security is lost,
destroyed, wrongfully taken or otherwise not available to be returned to the
Bank upon its request;
(ii) Any proxy materials received by a Depository with
respect to Portfolio Securities deposited with such Depository are forwarded
immediately to the Bank;
(iii) Such Depository immediately forwards to the Bank
confirmation of any purchase or sale of Portfolio Securities and of the
appropriate book entry made by such Depository to the Bank's customer account;
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(iv) Such Depository prepares and delivers to the Bank such
records with respect to the performance of the Bank's obligations and duties
hereunder as may be necessary for the Fund to comply with the recordkeeping
requirements of Section 31(a) of the 1940 Act and the SEC's rules thereunder;
and
(v) Such Depository delivers to the Bank all internal
accounting control reports, whether or not audited by an independent public
accountant, as well as such other reports as the Fund may reasonably request in
order to verify the Portfolio Securities held by such Depository.
6.5 USE OF BOOK-ENTRY SYSTEM FOR COMMERCIAL PAPER. [RESERVED]
6.6 USE OF IMMOBILIZATION PROGRAMS. [RESERVED]
6.7 EURODOLLAR CDS. Any Portfolio Securities which are Eurodollar CDs
may be physically held by the European branch of the U.S. banking institution
that is the issuer of such Eurodollar CD (a "European Branch"), provided that
such Securities are identified on the books of the Bank as belonging to the Fund
and that the books of the Bank identify the European Branch holding such
Securities. Notwithstanding any other provision of this Agreement to the
contrary, except as stated in the first sentence of this subsection 6.7, the
Bank shall be under no other duty with respect to such Eurodollar CDs belonging
to the Fund, and shall have no liability to the Fund or its shareholders with
respect to the actions or inactions, whether negligent or otherwise, of such
European Branch in connection with such Eurodollar CDs, except for any loss or
damage to the Fund resulting from the Bank's own gross negligence, willful
misfeasance or bad faith in the performance of its duties hereunder.
6.8 OPTIONS AND FUTURES TRANSACTIONS.
(a) Puts and Calls Traded on Securities Exchanges, NASDAQ or
Over-the-Counter.
1. The Bank shall take action regarding escrow or other
arrangements as to put options ("puts") and call options ("calls") purchased or
sold (written) by the Fund (i) in accordance with the provisions of any
agreement entered into upon receipt of Proper Instructions between the Bank, any
broker-dealer registered under the Exchange Act and a member of the National
Association of Securities Dealers, Inc. (the "NASD"), and, if necessary, the
Fund relating to the compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange, or of any
similar organization or organizations.
2. Unless another agreement requires it to do so, the Bank shall
be under no duty or obligation to see that the Fund has deposited or is
maintaining adequate margin, if required, with any broker in connection with any
option, nor shall the Bank be under duty or obligation to present such option to
the broker for exercise unless it receives Proper Instructions from the Fund.
The Bank shall have no responsibility for the legality of any put or call
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purchased or sold on behalf of the Fund, the propriety of any such purchase or
sale, or the adequacy of any collateral delivered to a broker in connection with
an option or deposited to or withdrawn from a Segregated Account (as defined in
subsection 6.9 below). The Bank specifically, but not by way of limitation,
shall not be under any duty or obligation to: (i) periodically check or notify
the Fund that the amount of such collateral held by a broker or held in a
Segregated Account is sufficient to protect such broker or the Fund against any
loss; (ii) effect the return of any collateral delivered to a broker; or (iii)
advise the Fund that any option it holds has or is about to expire. Such duties
or obligations shall be the sole responsibility of the Fund.
(b) Puts, Calls and Futures Traded on Commodities Exchanges
1. The Bank shall take action as to puts, calls and futures
contracts ("Futures") purchased or sold by the Fund in accordance with the
provisions of any agreement entered into upon receipt of Proper Instructions
among the Fund, the Bank and a Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any Contract Market (as such term is used in
the rules of the Commodities Futures Trading Commission), or any similar
organization or organizations, regarding account deposits in connection with
transactions by the Fund.
2. The responsibilities and liabilities of the Bank as to
futures, puts and calls traded on commodities exchanges, any Futures Commission
Merchant account and the Segregated Account shall be limited as set forth in
subparagraph (a)(2) of this Section 6.8 as if such subparagraph referred to
Futures Commission Merchants rather than brokers, and Futures and puts and calls
thereon instead of options.
6.9 SEGREGATED ACCOUNT. The Bank shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts (each a
"Segregated Account") for and on behalf of the Fund in connection with the
activities set forth below.
1. Upon receipt of Proper Instructions cash and/or Portfolio
Securities may be transferred into the Segregated Account or Accounts:
(a) in accordance with the provisions of any agreement among
the Fund, the Bank and a broker-dealer registered under the Exchange Act and a
member of the NASD or any Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities exchange or the
Commodity Futures Trading Commission or any registered Contract Market, or of
any similar organizations regarding escrow or other arrangements in connection
with transactions by the Fund;
(b) for the purpose of segregating cash or securities in
connection with options purchased or written by the Fund or commodity futures
purchased or written by the Fund;
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(c) for the deposit of liquid assets, such as cash, U.S.
Government securities or other high grade debt obligations in connection with
the Fund's forward commitment or "when-issued" agreements relating to the
purchase of Portfolio Securities and the Fund's commitments under reverse
repurchase agreements;
(d) for the deposit of any Portfolio Securities which the
Fund has agreed to sell on a forward commitment basis;
(e) for the purposes of compliance by the Fund with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange Commission
relating to the maintenance of Segregated Accounts by registered investment
companies; or
(f) for other proper corporate purposes, but only, in the
case of this clause (f), upon receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board, signed by an officer of the Fund
and certified by the Secretary or an Assistant Secretary, setting forth the
purpose or purposes of such Segregated Account and declaring such purposes to be
proper corporate purposes.
2. Upon receipt of Proper Instructions, cash and/or Portfolio
Securities may be withdrawn from the Segregated Account or Accounts.
(a) in accordance with the provisions of any agreements
referenced in (a) or (b) above;
(b) for sale or delivery to meet the Fund's obligations
under outstanding firm commitment or when-issued agreements for the purchase of
Portfolio Securities and under reverse repurchase agreements;
(c) for exchange for other liquid assets of equal or greater
value deposited in the Segregated Account;
(d) to the extent that the Fund's outstanding forward
commitment or when-issued agreements for the purchase of Portfolio Securities or
reverse repurchase agreements are sold to other parties or the Fund's
obligations thereunder are met from assets of the Fund other than those in the
Segregated Account; or
(e) for delivery upon settlement of a forward commitment
agreement for the sale of Portfolio Securities.
6.10 INTEREST BEARING CALL OR TIME DEPOSITS. The Bank shall, upon
receipt of Proper Instructions relating to the purchase by the Fund of
interest-bearing fixed-term and call deposits, transfer cash, by wire or
otherwise, in such amounts and to such bank or banks as shall be indicated in
such Proper Instructions. The Bank shall include in its records with respect to
the assets of the Fund appropriate notation as to the amount of each such
deposit and
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the banking institution with which such deposit is made (the "Deposit Bank"),
and shall retain such forms of advice or receipt evidencing the deposit, if any,
as may be forwarded to the Bank by the Deposit Bank. Such deposits shall be
deemed Portfolio Securities of the Fund and the responsibility of the Bank
therefore shall be the same as and no greater than the Bank's responsibility in
respect of other Portfolio Securities of the Fund.
6.11 TRANSFER OF SECURITIES. The Bank will transfer, exchange, deliver
or release Portfolio Securities held by it hereunder, insofar as such Securities
are available for such purpose, provided that before making any transfer,
exchange, delivery or release under this Section the Bank will receive Proper
Instructions requesting such transfer, exchange or delivery stating that it is
for a purpose permitted under the terms of this Section 6.11, specifying the
applicable subsection or permitted purpose, or describing the purpose of the
transaction with sufficient particularity to permit the Bank to ascertain the
applicable subsection, only:
(a) upon sales of Portfolio Securities for the account of
the Fund, against contemporaneous receipt by the Bank of payment therefor in
full or against payment to the Bank in accordance with generally accepted
settlement practices and customs in the jurisdiction or market in which the
transaction occurs, each such payment to be in the amount of the sale price
(including, where applicable, brokerage commissions) shown in a broker's
confirmation (or other transaction report in the case of securities maintained
in the Book Entry System) of sale of the Portfolio Securities received by the
Bank before such transfer is made, as confirmed in the Proper Instructions
received by the Bank before such transfer is made;
(b) in exchange for or upon conversion into other securities
alone or other securities and cash pursuant to any plan of merger,
consolidation, reorganization, share split-up, change in par value,
recapitalization or readjustment or otherwise, upon exercise of subscription,
purchase or sale or other similar rights represented by such Portfolio
Securities, or for the purpose of tendering shares in the event of a tender
offer therefor, provided however that in the event of an offer of exchange,
tender offer, or other exercise of rights requiring the physical tender or
delivery of Portfolio Securities, the Bank shall have no liability for failure
to so tender in a timely manner unless such Proper Instructions are received by
the Bank at least two business days prior to the date required for tender, and
unless the Bank (or its agent or subcustodian hereunder) has actual possession
of such Security at least two business days prior to the date of tender;
(c) upon conversion of Portfolio Securities pursuant to
their terms into other securities;
(d) for the purpose of redeeming in kind shares of the Fund
upon authorization from the Fund;
(e) in the case of option contracts owned by the Fund, for
presentation to the endorsing broker;
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(f) when such Portfolio Securities are called, redeemed or
retired or otherwise become payable;
(g) for the purpose of effectuating the pledge of Portfolio
Securities held by the Bank in order to collateralize loans made to the Fund by
any bank, including the Bank; provided, however, that such Portfolio Securities
will be released only against payment to the Bank for the account of the Fund of
the moneys borrowed, as set forth in the Proper Instructions, except that in
cases where additional collateral is required to secure a borrowing already
made, and such fact is made to appear in the Proper Instructions, further
Portfolio Securities may be released for that purpose without any such payment.
In the event that any such pledged Portfolio Securities are held by the Bank,
they will be so held for the account of the lender and, after notice to the Fund
from the lender in accordance with the normal procedures of the lender that an
event of deficiency or default on the loan has occurred, the Bank may deliver
such pledged Portfolio Securities to or for the account of the lender;
(h) for the purpose of releasing certificates representing
Portfolio Securities, against contemporaneous receipt by the Bank of the
consideration for such Portfolio Securities, as set forth in the Proper
Instructions received by the Bank before such payment is made;
(i) for the purpose of delivering securities lent by the
Fund to a bank or broker dealer, but only against receipt in accordance with
street delivery custom of adequate collateral as agreed upon from time to time
by the Fund and the Bank or otherwise set forth in the Proper Instructions;
(j) upon receipt of payment in connection with any
repurchase agreement relating to such securities entered into by the Fund;
(k) for other authorized transactions of the Fund or for
other proper corporate purposes; provided that before making such transfer, the
Bank will also receive a certified copy of resolutions of the Board, signed by
an authorized officer of the Fund (other than the officer certifying such
resolution) and certified by its Secretary or Assistant Secretary, specifying
the Portfolio Securities to be delivered, setting forth the transaction in or
purpose for which such delivery is to be made, declaring such transaction to be
an authorized transaction of the Fund or such purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of such securities
shall be made; and
(l) upon termination of this Agreement as hereinafter set
forth pursuant to Section 8 or Section 14 of this Agreement.
As to any deliveries made by the Bank pursuant to subsections (a), (b),
(c), (e), (f), (g), (h), (i) and (j) securities or cash receivable in exchange
therefor shall be delivered to the Bank.
7. REDEMPTIONS. In the case of payment of assets of the Fund held by the Bank in
connection with redemptions and repurchases by the Fund of outstanding common
shares, the
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Bank will rely on notification by the Fund's transfer agent of receipt of a
request for redemption and certificates, if issued, in proper form for
redemption before such payment is made.
8. MERGER, DISSOLUTION, ETC. OF FUND. In the case of the following transactions,
not in the ordinary course of business of which the Bank has received notice,
namely, the merger of the Fund into or the consolidation of the Fund with
another investment company where the Fund is not the surviving entity, the sale
by the Fund of all, or substantially all, of its assets to another investment
company, or the liquidation or dissolution of the Fund and distribution of its
assets, the Bank will deliver the Portfolio Securities held by it under this
Agreement and disburse cash only upon the order of the Fund set forth in an
Officers' Certificate, accompanied by a certified copy of a resolution of the
Board authorizing any of the foregoing transactions. Upon completion of such
delivery and disbursement and the payment of the fees, disbursements and
expenses of the Bank, this Agreement will terminate.
9. ACTIONS OF BANK WITHOUT PRIOR AUTHORIZATION. Notwithstanding anything herein
to the contrary, unless and until the Bank receives an Officers' Certificate to
the contrary, it will without prior authorization or instruction of the Fund or
the transfer agent:
9.1 Endorse for collection and collect on behalf of and in the name of
the Fund all checks, drafts, or other negotiable or transferable instruments or
other orders for the payment of money received by it for the account of the Fund
and hold for the account of the Fund all income, dividends, interest and other
payments or distribution of cash with respect to the Portfolio Securities held
thereunder;
9.2 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 cash received by it upon such payment for the account of the Fund;
9.3 Receive and hold for the account of the Fund all securities received
as a distribution on Portfolio Securities as a result of a stock dividend, share
split-up, reorganization, recapitalization, merger, consolidation, readjustment,
distribution of rights and similar securities issued with respect to any
Portfolio Securities held by it hereunder;
9.4 Execute as agent on behalf of the Fund all necessary ownership and
other certificates and affidavits as may be required to obtain payment in
respect of Portfolio Securities owned by the Fund;
9.5 Present for payment all Portfolio Securities which are called,
redeemed, retired or otherwise become payable, and hold cash received by it upon
payment for the account of the Fund; and
9.6 Exchange interim receipts or temporary securities for definitive
securities.
10. COLLECTIONS AND DEFAULTS. The Bank will use all reasonable efforts to
collect any funds which to its knowledge become collectible arising from
Portfolio Securities, including
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dividends, interest and other income, and to transmit to the Fund notice
actually received by it of any call for redemption, offer of exchange, right of
subscription, reorganization or other proceedings affecting such securities. If
Portfolio Securities upon which such income is payable are in default or payment
is refused after due demand or presentation, the Bank will notify the Fund (or
the applicable investment adviser) in writing of any default or refusal to pay
within five business days from the day on which it receives knowledge of such
default or refusal. In addition, the Bank will send the Fund a written report
once each month showing any income on any Portfolio Security held by it which is
more than ten days overdue on the date of such report and which has not
previously been reported.
11. MAINTENANCE OF RECORDS AND ACCOUNTING SERVICES.
11.1 Subject to the provisions of subsection 11.2 below:
The Bank will maintain records with respect to transactions for
which the Bank is responsible pursuant to the terms and conditions of this
Agreement, and in compliance with the applicable rules and regulations of the
1940 Act and will furnish the Fund daily with a statement of condition of the
Fund. The Bank will furnish to the Fund at the end of every month, and at the
close of each quarter of the Fund's fiscal year, a list of the Portfolio
Securities and the aggregate amount of cash held by it for the Fund. The books
and records of the Bank pertaining to its actions under this Agreement and
reports by the Bank or its independent accountants concerning its accounting
system, procedures for safeguarding securities and internal accounting controls
will be open to inspection and audit during business hours by officers of or
auditors employed by the Fund upon reasonable prior notice (except in the case
of surprise audits required by Rule 17f-2 under the 1940 Act), and will be
preserved by the Bank in the manner and in accordance with the applicable rules
and regulations under the 1940 Act.
The Bank shall keep the books of account and render statements or
copies from time to time as reasonably requested by the Treasurer or any
executive officer of the Fund.
The Bank shall assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
The books and records maintained by the Bank on behalf of the
Fund are the property of the Fund and will be surrendered upon request in
accordance with Section 14.
11.2 The Bank, the Fund and Investors Bank & Trust Company ("IBT") by
letter dated November 25, 1997, have agreed that IBT shall be responsible for
the accounting services contemplated by Section 11.1 hereof. To that end, the
Bank shall provide IBT daily reports of Portfolio Securities and cash held on
behalf of the Fund, trade confirmations for transactions involving Portfolio
Securities, reports regarding corporate actions involving Portfolio Securities,
notification of voluntary corporate actions involving Portfolio Securities
elected by the Fund, and such other information as IBT shall reasonably request.
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12. FUND EVALUATION.
12.1 Subject to the provisions of Section 12.2 below:
The Bank shall compute and, unless otherwise directed by the
Board, determine as of the close of business on the New York Stock Exchange on
each day on which said Exchange is open for unrestricted trading and as of such
other hours, if any, as may be authorized by the Board the net asset value and
the public offering price of a share of capital stock of the Fund, such
determination to be made in accordance with the provisions of the Articles and
By-laws of the Fund and Prospectus and Statement of Additional Information
relating to the Fund, as they may from time to time be amended, and any
applicable resolutions of the Board at the time in force and applicable; and
promptly notify the Fund, the proper exchange and the NASD or such other persons
as the Fund may request, of the results of such computation and determination.
In computing the net asset value hereunder, the Bank may rely in
good faith upon information furnished to it by any Authorized Person in respect
of (i) the manner of accrual of the liabilities of the Fund and in respect of
liabilities of the Fund not appearing on its books of account kept by the Bank,
(ii) reserves, if any, authorized by the Board or that no such reserves have
been authorized, (iii) the source of the quotations to be used in computing the
net asset value, (iv) the value to be assigned to any security for which no
price quotations are available, and (v) the method of computation of the public
offering price on the basis of the net asset value of the shares, and the Bank
shall not be responsible for any loss occasioned by such reliance or for any
good faith reliance on any quotations received from a source pursuant to (iii)
above.
12.2 The Bank, the Fund and IBT by letter dated November 25, 1997, have
agreed that IBT shall be responsible for the services contemplated by Section
12.1 hereof. To that end, the Bank shall provide IBT daily reports of Portfolio
Securities and cash held on behalf of the Fund, trade confirmations for
transactions involving Portfolio Securities, reports regarding corporate actions
involving Portfolio Securities, notification of voluntary corporate actions
involving Portfolio Securities elected by the Fund, and such other information
as IBT shall reasonably request.
13. CONCERNING THE BANK.
13.1 PERFORMANCE OF DUTIES AND STANDARD OF CARE. In performing its
duties hereunder and any other duties listed on any Schedule hereto, if any, the
Bank will be entitled to receive and act upon the advice of independent counsel
of its own selection, which may be counsel for the Fund, and will be without
liability for any action taken or thing done or omitted to be done in accordance
with this Agreement in good faith in conformity with such advice. In the
performance of its duties hereunder, the Bank will be protected and not be
liable, and will be indemnified and held harmless for any action taken or
omitted to be taken by it in good faith reliance upon the terms of this
Agreement, any Officers' Certificate, Proper Instructions, resolution of the
Board, telegram, notice, request, certificate or other instrument reasonably
believed by the Bank to be genuine and for any other loss to the Fund except in
the case of its gross negligence, willful misfeasance or bad faith in the
performance of its duties or reckless disregard of its obligations and duties
hereunder.
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Without limiting the generality of the foregoing, the Bank will be under
no duty or obligation to inquire into and will not be liable for:
(a) the validity of the issue of any Portfolio Securities
purchased by or for the Fund, the legality of the purchases thereof or the
propriety of the price paid therefor;
(b) the legality of any sale of any Portfolio Securities by or
for the Fund or the propriety of the amount for which the same are sold;
(c) the legality of an issue or sale of any common shares of the
Fund or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any common shares of the
Fund or the propriety of the amount to be paid therefor;
(e) the legality of the declaration of any dividend by the Fund
or the legality of the distribution of any Portfolio Securities as payment in
kind of such dividend;
(f) the legality of any put or call option or futures contract
purchased or sold on behalf of the Fund;
(g) the propriety of any investment or contract decision made on
behalf of the Fund;
(h) the adequacy of any collateral provided to the Fund by any
third party, or to a third party on behalf of the Fund;
(i) the compliance or non-compliance by the Fund with the terms
of any contract or agreement entered into by the Fund;
(j) the selection of brokers, dealers, banking institutions,
futures commission merchant or other parties with which the Fund deals or for
their failure to comply with the terms of any contracts or agreements between
such persons and the Fund; or
(k) any property or moneys of the Fund unless and until received
by it, and any such property or moneys delivered or paid by it pursuant to the
terms hereof.
Moreover, the Bank will not be under any duty or obligation to ascertain
whether any Portfolio 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 Articles, By-laws, any federal or state statutes or any rule
or regulation of any governmental agency.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Bank be liable hereunder or to any third party:
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20
(a) for any losses or damages of any kind resulting from acts of
God, earthquakes, fires, floods, storms or other disturbances of nature,
epidemics, strikes, riots, nationalization, expropriation, currency
restrictions, acts of war, civil war or terrorism, insurrection, nuclear fusion,
fission or radiation, the interruption, loss or malfunction of utilities,
transportation, or computers (hardware or software) and computer facilities, the
unavailability of energy sources and other similar happenings or events except
as results from the Bank's own gross negligence; or
(b) for special, punitive or consequential damages arising from
the provision of services hereunder, even if the Bank has been advised of the
possibility of such damages.
13.2 AGENTS AND SUBCUSTODIANS WITH RESPECT TO PROPERTY OF THE FUND HELD
IN THE UNITED STATES. The Bank may employ agents in the performance of its
duties hereunder and shall be responsible for the acts and omissions of such
agents as if performed by the Bank hereunder.
Upon receipt of Proper Instructions, the Bank may employ subcustodians,
provided that any such subcustodian meets at least the minimum qualifications
required by Section 17(f)(1) of the 1940 Act to act as a custodian of the Fund's
assets with respect to property of the Fund held in the United States. The Bank
shall have no liability to the Fund or any other person by reason of any act or
omission of such subcustodian and the Fund shall indemnify the Bank and hold it
harmless from and against any and all actions, suits and claims, arising
directly or indirectly out of the performance of such subcustodian. Upon request
of the Bank, the Fund shall assume the entire defense of any action, suit, or
claim subject to the foregoing indemnity. The Fund shall pay all fees and
expenses of such subcustodian.
13.3 DUTIES OF THE BANK WITH RESPECT TO PROPERTY OF THE FUND HELD
OUTSIDE OF THE UNITED STATES.
Unless and until such time as this Agreement is amended to appoint the
Bank as custodian for the Fund's Portfolio Securities and other assets
maintained outside the United States, the Bank shall have no responsibility for
the Fund's non-U.S. assets, except for such non-U.S. assets as may be expressly
delivered to the Bank for custody hereunder.
13.4 INSURANCE. The Bank shall use the same care with respect to the
safekeeping of Portfolio Securities and cash of the Fund held by it as it uses
in respect of its own similar property but it need not maintain any special
insurance for the benefit of the Fund.
13.5. FEES AND EXPENSES OF BANK. The Fund will pay or reimburse the Bank
from time to time for any transfer taxes payable upon transfer of Portfolio
Securities made hereunder, and for all disbursements, expenses and charges made
or incurred by the Bank in the performance of this Agreement (including any
duties listed on any Schedule hereto, if any) including any indemnities for any
loss, liabilities or expense to the Bank as provided above. For the services
rendered by the Bank hereunder, the Fund will pay to the Bank such compensation
or fees at such rate and at such times as shall be agreed upon in writing by the
parties from time
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to time. The Bank will also be entitled to reimbursement by the Fund for all
reasonable expenses incurred in conjunction with termination of this Agreement
by the Fund.
13.6 ADVANCES BY BANK. The Bank may, in its sole discretion, advance
funds on behalf of the Fund to make any payment permitted by this Agreement upon
receipt of any Proper Instructions for such payments by the Fund. Should such a
payment or payments, with advanced funds, result in an overdraft (due to
insufficiencies of the Fund's account with the Bank, or for any other reason)
this Agreement deems any such overdraft or related indebtedness a loan made by
the Bank to the Fund payable on demand and bearing interest at the current rate
charged by the Bank for such loans unless the Fund shall provide the Bank with
agreed upon compensating balances. The Fund agrees that, to the extent of any
overdraft or indebtedness, the Bank shall have a continuing lien and security
interest in and to, and may exercise a right of set-off against, any property at
any time held by it for the Fund's benefit or in which the Fund has an interest
and which is then on deposit with or otherwise in the Bank's possession or
control (or in the possession or control of any third party acting on the Bank's
behalf). The Fund will do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged and delivered, all such further acts, assignments,
transfers and assurances as the Bank reasonably may require to perfect the lien
and security interest herein provided for in the property of the Fund. The Fund
authorizes the Bank, in its sole discretion, at any time to charge any overdraft
or indebtedness, together with interest due thereon, against any balance of
account standing to the credit of the Fund on the Bank's books.
14. TERMINATION.
14.1 This Agreement may be terminated at any time without penalty upon
sixty days written notice delivered by either party to the other by means of
registered mail, and upon the expiration of such sixty days this Agreement will
terminate; provided, however, that the effective date of such termination may be
postponed to a date not more than ninety days from the date of delivery of such
notice (i) by the Bank in order to prepare for the transfer by the Bank of all
of the assets of the Fund held hereunder, and (ii) by the Fund in order to give
the Fund an opportunity to make suitable arrangements for a successor custodian.
At any time after the termination of this Agreement, the Fund will, at its
request, have access to the records of the Bank relating to the performance of
its duties as custodian.
14.2 In the event of the termination of this Agreement, the Bank will
immediately upon receipt or transmittal, as the case may be, of notice of
termination, commence and prosecute diligently to completion the transfer of all
cash and the delivery of all Portfolio Securities duly endorsed and all records
maintained under Section 11 to the successor custodian when appointed by the
Fund. The obligation of the Bank to deliver and transfer over the assets of the
Fund held by it directly to such successor custodian will commence as soon as
such successor is appointed and will continue until completed as aforesaid. If
the Fund does not select a successor custodian within ninety (90) days from the
date of delivery of notice of termination the Bank may, subject to the
provisions of subsection 14.3, deliver the Portfolio Securities and cash of the
Fund held by the Bank to a bank or trust company of its own selection which
meets the requirements of
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Section 17(f)(1) of the 1940 Act and has a reported capital, surplus and
undivided profits aggregating not less than $2,000,000, to be held as the
property of the Fund under terms similar to those on which they were held by the
Bank, whereupon such bank or trust company so selected by the Bank will become
the successor custodian of such assets of the Fund with the same effect as
though selected by the Board.
14.3 Prior to the expiration of ninety (90) days after notice of
termination has been given, the Fund may furnish the Bank with an order of the
Fund advising that a successor custodian cannot be found willing and able to act
upon reasonable and customary terms and that there has been submitted to the
shareholders of the Fund the question of whether the Fund will be liquidated or
will function without a custodian for the assets of the Fund held by the Bank.
In that event the Bank will deliver the Portfolio Securities and cash of the
Fund held by it, subject as aforesaid, in accordance with one of such
alternatives which may be approved by the requisite vote of shareholders, upon
receipt by the Bank of a copy of the minutes of the meeting of shareholders at
which action was taken, certified by the Fund's Secretary and an opinion of
counsel to the Fund in form and content satisfactory to the Bank.
15. CONFIDENTIALITY. Both parties hereto agree that any non-public information
obtained hereunder concerning the other party is confidential and may not be
disclosed to any other person without the consent of the other party, except as
may be required by applicable law, regulation, court order, decrees or legal
process or the request of a governmental agency. The parties further agree that
a breach of this provision would irreparably damage the other party and
accordingly agree that each of them is entitled, without bond or other security,
to an injunction or injunctions to prevent breaches of this provision.
16. NOTICES. Any notice or other instrument in writing authorized or required by
this Agreement to be given to either party hereto will be sufficiently given if
addressed to such party and mailed or delivered to it at its office at the
address set forth below; namely:
(a) In the case of notices sent to the Fund to:
Republic Funds
c/o BISYS Fund Services
ββββ βββββββ ββββ, βββββ ββββ
ββββββββ, ββββ βββββ-ββββ
Attn: ____________
(b) In the case of notices (other than Proper Instructions) sent to the
Bank to:
Republic National Bank of New York
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: _______________
or at such other place as such party may from time to time designate in writing.
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23
17. AMENDMENTS. This Agreement may not be altered or amended, except by an
instrument in writing, executed by both parties.
18. PARTIES. This Agreement will be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that this Agreement will not be assignable by the Fund without the
written consent of the Bank or by the Bank without the written consent of the
Fund; and provided further that termination proceedings pursuant to Section 14
hereof will not be deemed to be an assignment within the meaning of this
provision.
19. GOVERNING LAW. This Agreement and all performance hereunder will be governed
by the laws of the State of New York.
20. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
21. LIMITATION OF LIABILITY. A copy of the Agreement and Declaration of Trust of
the Fund is on file with the Secretary of State of the Commonwealth of
Massachusetts and notice is hereby given that this Agreement has been executed
on behalf of the Fund by an officer of the Fund as an officer and not
individually and the obligations of the Fund arising out of this Agreement are
not binding upon any of the trustees, officers, or shareholders of the Fund
individually but are binding only upon the assets and property of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
REPUBLIC FUNDS
By:
Name:
Title:
REPUBLIC NATIONAL BANK OF NEW YORK
By:
Name:
Title:
DATE: December 1, 1997
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