CUSTODY AGREEMENT
AGREEMENT dated as of March 20, 1989, between TUDOR FUND (the "Trust"),
a Massachusetts business trust, having its principal office and place of
business at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and BOSTON SAFE
DEPOSIT AND TRUST COMPANY (the "Custodian"), a Massachusetts trust company with
its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
W I T N E S S E T H:
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That for and in consideration of the mutual promises hereinafter set
forth, the Trust and the Custodian agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement or in any Schedules
to this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
(a) "Authorized Person" shall be deemed to include the
President, and any Vice President, the Secretary, the
Treasurer, or any other person, whether or not any such person
is an officer or employee of the Trust, duly authorized by the
Board of Trustees of the Trust to give Oral instructions and
Written Instructions on behalf of the Trust end listed in the
certification annexed hereto as Appendix A or such other
certification as may be received by the Custodian from time to
time.
(b) "Book-Entry System" shall mean the Federal Reserve/
Treasury book-entry system for United States and federal
agency Securities its successor or successors and its nominee
or nominees.
(c) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this
Agreement to be given to the Custodian, which is actually
received by the Custodian and signed on behalf of the Trust by
such Authorized Person as the Trust shall designate.
(d) "Declaration of Trust" shall mean the Declaration of Trust
of the Trust dated April 13, 1968 as the ▇▇▇ may be amended
from time to time.
(e) "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and
Exchange
Commission under Section 17(A) of the Securities Exchange Act
of 1934, as amended, its successor or successors and its
nominee or nominees, in which the Custodian is hereby
specifically authorized to make deposits. The term
"Depository" shall further mean and include any other person
to be named in a Certificate authorized to act as a depository
under the 1940 Act, its successor or successors and its
nominee or nominees.
(f) "Money Market Security" shall be deemed to include,
without limitation, debt obligations issued or guaranteed as
to interest and principal by the Government of the United
States or agencies or instrumentalities thereof, commercial
paper, bank certificate of deposit, bankers acceptances and
short-term corporate obligations, where the purchase or sale
of such securities normally requires settlement in federal
funds on the same day as such purchase or sale, and repurchase
and reverse repurchase agreements with respect to any of the
foregoing types of securities.
(g) "Oral Instructions" shall mean verbal instructions
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person.
(h) "Prospectus" shall mean the Trust's current prospectus and
statement of additional information relating to the
registration of the Trust's Shares under the Securities Act of
1933, as amended.
(i) "Shares" refers to the shares of beneficial interest of
the Trust.
(j) "Security" or "Securities" shall be deemed to include
bonds, debentures, notes, stocks, shares, evidences of
indebtedness, and other securities and investments from time
to time owned by the Trust.
(k) "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for the Trust.
(l) "Written Instructions" shall mean a written communication
actually received by the Custodian from a person reasonably
believed by the Custodian to be an Authorized Person by any
system whereby the receiver of such communication is able to
verify through codes or otherwise with a reasonable degree of
certainty the authenticity of the sender of such
communication.
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2.
3.
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4. CUSTODY OF CASH AND SECURITIES.
(a) RECEIPT AND HOLDING OF ASSETS. The Trust will deliver or
cause to be delivered to the Custodian all Securities and
moneys owned by it at any time during the period of this
Agreement. The Custodian will not be responsible for such
Securities and moneys until actually received by it. The Trust
shall instruct the Custodian from time to time in its sole
discretion, by means of a Certificate, or, in connection with
the purchase or sale of Money Market Securities, by means of
Oral Instructions or Written Instructions as to the manner in
which and in what amounts Securities and moneys of the Trust
are to be deposited on behalf of the Trust in the Book-Entry
System; or the Depository provided, however, that prior to the
deposit of Securities of the Trust in the Book-Entry System or
the Depository, including a deposit in connection with the
settlement of a purchase or sale, the Custodian shall have
received a Certificate specifically approving such deposits by
the Custodian in the Book-Entry System or the Depository.
(b) ACCOUNTS AND-DISBURSEMENTS. The Custodian shall establish
and maintain a separate account for the Trust and shall credit
to the separate account of the Trust all moneys received by it
for the account the Trust and shall disburse the same only:
1. In payment for Securities purchased for the Trust,
as provided in Section 5 hereof;
2. In payment of dividends or distributions with
respect to the Shares of the Trust, as provided in
Section 7 hereof;
3. In payment of original issue or other taxes with
respect to the Shares of the Trust, as provided in
Section 8 hereof;
4. In payment for Shares which have been redeemed by
the Trust, as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect
to Money Market Securities, Oral Instruction or
Written Instructions, setting forth the name and
address of the person to whom the payment-is to be
made, the amount to be paid and the purpose for which
payment is to be made; or
6. In payment of fees and in reimbursement of the
expenses and liabilities of the Custodian
attributable to the Trust, as provided in Section
11(h) hereof.
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(c) CONFIRMATION AND STATEMENTS. Promptly after the close of
business on each day, the Custodian shall furnish the Trust
with confirmations and a summary of all transfers to or from
the account of the Trust during said day. Where securities
purchased by the Trust are in a fungible bulk of securities
registered in the name of the Custodian (or its nominee) or
shown on the Custodian's account on the books of the
Depository or the Book-Entry System, the Custodian shall by
book entry or otherwise identify the quantity of those
securities belonging to the Trust. At least monthly, the
Custodian shall furnish the Trust with a detailed statement of
the Securities and moneys held for the Trust under this
Agreement.
(d) REGISTRATION OF SECURITIES AND PHYSICAL SEPARATION. All
Securities held for the Trust which are issued or issuable
only in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that
form; all other Securities held for the Trust may be
registered in the name of the Trust, in the name of any duly
appointed registered nominee of the Custodian as the Custodian
may from time to time determine, or in the name of the
Book-Entry System or the Depository or their successor or
successors, or their nominee or nominees. The Trust reserves
the right to instruct the Custodian as to the method of
registration and safekeeping of the Securities of the Trust.
The Trust agrees to furnish to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in
proper form for transfer, or to register in the name of its
registered nominee or in the name of the Book-Entry System or
the Depository, any Securities which it may hold for the
account of the Trust and which may from time to time be
registered in the name of the Trust. The Custodian shall hold
all such Securities which are not held in the Book-Entry
System or the Depository in a separate account for the Trust
in the name of the Trust physically segregated at all times
from those of any other person or persons.
(e) COLLECTION OF INCOME AND OTHER MATTERS AFFECTING
SECURITIES. Unless otherwise instructed to the contrary by a
Certificate, the Custodian by itself, or through the use of
the Book-Entry System or the Depository with respect to
Securities therein deposited, shall with respect to all
Securities held for the Trust in accordance with this
Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable
upon all Securities which may mature or be called,
redeemed or retired,
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or otherwise become payable; Notwithstanding the
foregoing, the Custodian shall have no responsibility
to the Trust for monitoring or ascertaining any call,
redemption or retirement dates with respect to put
bonds which are owned by the Trust and held by the
Custodian or its nominees. Nor shall the Custodian
have any responsibility or liability to the Trust for
any loss by the Trust for any missed payments or
other defaults resulting therefrom; unless the
Custodian receives timely notification from the Trust
specifying the time, place and manner for the
presentment of any such put bond owned by the Trust
held by the Custodian or its nominee. The Custodian
shall not be responsible and assumes no liability for
the Trust for the accuracy or completeness of any
notification the Custodian may furnish to the Trust
with respect to put bonds;
3. Surrender Securities in temporary form for
definitive Securities;
4. Execute any necessary declarations or certificates
of ownership under the Federal income tax laws or the
laws or regulations of any other taxing authority now
or hereafter in effect; and
5. Hold directly, or through the Book-Entry System or
the Depository with respect to Securities therein
deposited for the account of each Portfolio all
rights and similar Securities issued with respect to
any Securities held by the Custodian hereunder for
the Trust.
(f) DELIVERY OF SECURITIES AND EVIDENCE OF AUTHORITY. Upon
receipt of Written Instructions and not otherwise, except for
subparagraphs 5, 6, 7, and 8 which may be effected by Oral or
Written Instructions, the Custodian, directly or through the
use of the Book-Entry System or the Depository, shall:
1. Execute and deliver or cause to be executed and
delivered to such persons as may be designated in
such Written Instructions proxies, consents,
authorizations, and any other instruments whereby the
authority of the Trust as owner of any Securities may
be exercised;
2. Deliver or cause to be delivered any Securities
held for the Trust in exchange for other Securities
or cash issued or paid in connection with the
liquidation, reorganization, refinancing,
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merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion
privilege;
3. Deliver or cause to be deliver any Securities held
for the Trust to any protective committee,
reorganization committee or other person in
connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of
assets of any corporation, and receive and hold under
the terms of this Agreement in the separate account
for the Trust such certificates of deposit, interim
receipts or other instruments or documents as may be
issued to it to evidence such delivery;
4. Make or cause to be made such transfers or
exchanges of the assets to the Trust and take such
other steps as shall be stated in said Certificate to
be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the
Trust;
5. Deliver Securities owned by the Trust upon sale of
such Securities for the account of the Trust pursuant
to Section 5;
6. Deliver Securities owned by the Trust upon the
receipt of payment in connection with any repurchase
agreement related to such Securities entered into by
the Trust;
7. Deliver Securities owned by the Trust to the
issuer thereof or its agent when such Securities are
called, redeemed, retired or otherwise become
payable; provided, however, that in any such case the
cash or other consideration is to be delivered to the
Custodian; Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Trust
for monitoring or ascertaining any call, redemption
or retirement dates with respect to the put bonds
which are owned by the Trust and held by the
Custodian or its nominee. Nor shall the Custodian
have any responsibility r liability to the Trust for
any loss by the Trust for any missed payment or other
default resulting therefrom; unless the Custodian
received timely notification from the Trust
specifying the time, place and manner for the
presentment of any such put bond owned by the Trust
and held by the Custodian or its nominee. The
Custodian shall not be responsible and assumes no
liability to the Trust for the accuracy or
completeness of any notification the Custodian may
furnish to the Trust with respect to put bonds;
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8. Deliver Securities owned by the Trust for delivery
in connection with any loans of securities made by
the Trust but only against receipt of adequate
collateral as agreed upon from time to time by the
Custodian and the Trust which may be in the form of
cash or obligations issued by the United States
government, its agencies or instrumentalities;
9. Deliver Securities owned by the Trust for delivery
as security in connection with any borrowings by the
Trust requiring a pledge of Trust assets, but only
against receipt of amounts borrowed;
10. Deliver Securities owned by the Trust upon
receipt of instructions from the Trust for delivery
to the Transfer Agent or to the holders of Shares in
connection with distributions in kinds as may be
described from time to time in the Trusts Prospectus,
in satisfaction of requests by holders of Shares for
repurchase or redemption; and
11. Deliver Securities owned by any Portfolio for any
other proper business purpose, but only upon receipt
of, in addition to Written Instructions, a certified
copy of a resolution of the Board of Trustees signed
by an Authorized Person and certified by the
Secretary of the Trust, 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 business purpose, and naming the
person or persons to whom delivery of such Securities
shall be made.
(g) ENDORSEMENT AND COLLECTION OF CHECKS, ETC. 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 Trust.
5. PURCHASE AND SALE OF INVESTMENTS OF THE TRUST.
(a) Promptly after each purchase of Securities for the Trust,
the Trust shall deliver to the Custodian (i) with respect to
each purchase of Securities which are not Money Market
Securities, Written Instruction, and (ii) with respect to each
purchase of Money Market Securities, either Written or Oral
Instruction, in either case specifying with respect to each
purchase: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or the principal amount
purchased and accrued interest, if any; (3) the date of
purchase and settlement; (4) the purchase
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price per unit; (5) the total amount payable upon such
purchase; (6) the name of the person from whom or the broker
through whom the purchase was made, if any; (7) whether or not
such purchase is to be settled through the Book-Entry System
or the Depository; and (8) whether the Securities purchased
are to be deposited in the Book-Entry System or the
Depository. The Custodian shall receive all Securities
purchased by or for the Trust and upon receipt of such
Securities shall pay out of the moneys held for the account of
the Trust the total amount payable upon such purchase,
provided that the same conforms to the total amount payable as
set forth in such Written or Oral Instructions.
(b) Promptly after each sale of Securities of the Trust, the
Trust shall deliver to the Custodian (i) with respect to each
sale of Securities which are not Money Market Securities,
Written Instruction, and (ii) with respect to each sale of
Money Market Securities, either Written or Oral Instruction,
in either case specifying with respect to such sale: (1) the
name of the issuer and the title of the Securities; (2) the
number of shares or principal amount sold, and accrued
interest, if any; (3) the date of sale; (4) the sale price per
unit; (5) the total amount payable to the Trust upon such
sale; (6) the name of the broker through whom or the person to
whom the sale was made; and (7) whether or not such sale is to
be settled through the Book-Entry System or the Depository.
The Custodian shall deliver or cause to be delivered the
Securities to the broker or other person designated by the
Trust upon receipt of the total amount payable to the Trust
upon such sale, provided that the same conforms to the total
amount payable to the Trust as set forth in such Written
Instruction or such Oral Instructions. Subject to the
foregoing, the Custodian may accept payment in such form as
shall be satisfactory to it, and may deliver Securities and
arrange for payment in accordance with the customs prevailing
among dealers in Securities.
6. LENDING OF SECURITIES.
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If the Trust is permitted by the terms of the
Declaration of Trust and as disclosed in its Prospectus to
lend Securities, within 24 hours after each loan of
Securities, the Trust shall deliver to the Custodian Written
Instruction specifying with respect to each such loan: (1) the
name of the issuer and the title of the Securities; (2) the
number of shares or the principal amount loaned; (3) the date
of loan and delivery; (4) the total amount to be delivered to
the Custodian, against the loan of the Securities, including
the amount of cash collateral and the premium, if any,
separately identified; (5) the name of the broker, dealer or
financial institution to which the loan was made; and (6)
whether the
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Securities loaned are to be delivered through the Book-Entry
System or the Depository.
Promptly after each termination of a loan of
Securities, the Trust shall deliver to the Custodian Written
Instruction specifying with respect to each such loan
termination and return of Securities: (1) the name of the
issuer and the title of the Securities to be returned; (2) the
number of shares or the principal amount to be returned; (3)
the date of termination; (4) the total amount to be delivered
by the Custodian (including the cash collateral for such
Securities minus any offsetting credits as described in said
Written Instructions); (5) the name of the broker, dealer or
financial institution from which the Securities will be
returned; and (6) whether such return is to be effected
through the Book-Entry System or the Depository. The Custodian
shall receive all Securities returned from the broker, dealer
or financial institution to which such Securities were loaned
and upon receipt thereof shall pay, out of the moneys of the
Trust, the total amount payable upon such return of Securities
as set forth in the Written Instruction. Securities returned
to the Custodian shall be held as they were prior to such
loan.
7. PAYMENT OF DIVIDENDS OR DISTRIBUTIONS.
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(a) The Trust shall furnish to the Custodian the resolution of
the Board of Trustees of the Trust certified by the Secretary
(i) authorizing the declaration of dividends of the Trust on a
specified periodic basis and authorizing the Custodian to rely
on Oral or Written Instructions specifying the date of the
declaration of such dividend or distribution, the date of
payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date
and the total amount payable to the Transfer Agent on the
payment date, or (ii) setting forth the date of declaration of
any dividend or distribution by of the Trust, the date of
payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable
per share to the shareholders of record as of the record date
and the total amount payable to the Transfer Agent on the
payment date.
(b) Upon the payment date specified in such resolution. Oral
Instructions, or Written Instructions, as the case may be, the
Custodian shall pay out the moneys specifically allocated to
and held for the account of the Trust the total amount payable
to the Transfer Agent of the Trust.
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8. SALE AND REDEMPTION OF SHARES OF THE TRUST.
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(a) Whenever the Trust shall sell any Shares of the Trust, the
Trust shall deliver or cause to be delivered to the Custodian
a Written Instruction duly specifying:
1. The number of Shares sold, trade date, and price;
and
2. The amount of money to be received by the
Custodian for the sale of such Shares.
(b) Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the separate account of
the Trust.
(c) Upon issuance of any Shares of the Trust in accordance
with the foregoing provisions of this Section 8, the Custodian
shall pay, all original issue or other taxes required to be
paid in connection with such issuance upon the receipt of
Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of the
Trust are redeemed, the Trust shall cause the Transfer Agent
to promptly furnish to the Custodian Written Instructions,
specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
(e) Upon receipt from the Transfer Agent of advice setting
forth the number of Shares of the Trust received by the
Transfer Agent for redemption and that such Shares are valid
and in good form for redemption, the Custodian shall make
payment to the Transfer Agent the total amount specified in
the Written Instruction issued pursuant to paragraph (d) of
this Section 8.
(f) Notwithstanding the above provisions regarding the
redemption of Shares, whenever such Shares are redeemed
pursuant to any check redemption privilege which may from time
to time be offered by the Trust, the Custodian, unless
otherwise instructed by Written Instruction shall, upon
receipt of advice from the Trust or its agent stating that the
redemption is in good form for redemption in accordance with
the check redemption procedure, honor the check presented as
part of such check redemption privilege out of the moneys of
the Trust.
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9. INDEBTEDNESS.
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(a) The Trust will cause to be delivered to the Custodian by
any bank (excluding the Custodian) from which the Trust
borrows money for temporary administrative or emergency
purposes using Securities as collateral for such borrowings, a
notice or undertaking in the form currently employed by any
such bank setting forth the amount which such bank will loan
to the Trust against delivery of a stated amount of
collateral. The Trust shall promptly deliver to the Custodian
Written or Oral Instructions stating with respect to each such
borrowing: (1) the name of the bank; (2) the amount and terms
of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the
Trust, or other loan agreement; (3) the time and date, if
known, on which the loan is to be entered into (the "borrowing
date"); (4) the date on which the loan becomes due and
payable; (5) the total amount payable to the Trust on the
borrowing date; (6) the market value of Securities to be
delivered as collateral for such loan, including the name of
the issuer, the title and the number of shares or the
principal amount of any particular Securities; (7) whether the
Custodian is to deliver such collateral through the Book-Entry
System or the Depository; and (8) a statement that such loan
is in conformance with the 1940 Act and the Trust's
Prospectus.
(b) Upon receipt of Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the
borrowing date the specified collateral and the executed
promissory note, if any, against delivery by the lending bank
of the total amount of the loan payable, provided that the
same conforms to the total amount payable as set forth in the
Written or Oral Instructions. The Custodian may, at the option
of the lending bank, keep such collateral in its possession,
but such collateral shall be subject to all rights therein
given the lending bank by virtue of any promissory note or
loan agreement. The Custodian shall deliver as additional
collateral in the manner directed by the Trust from time to
time such Securities as may be specified in Written or Oral
Instructions to collateralize further any transaction
described in this Section 9. The Trust shall cause all
Securities released from collateral status to be returned
directly to the Custodian, and the Custodian shall receive
from time to time such return of collateral as may be tendered
to it. In the event that the Trust fails to specify in Written
or Oral Instructions all of the information required by this
Section 9, the Custodian shall not be under any obligation to
deliver any Securities. Collateral returned to the Custodian
shall be held hereunder as it was prior to being used as
collateral.
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10. PERSONS HAVING ACCESS TO ASSETS OF THE TRUST.
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(a) No Trustee, officer, employee or agent of the Trust, and
no officer, director, employee or agent of the investment
adviser, shall have physical access to the assets of the Trust
held by the Custodian or be authorized or permitted to
withdraw any investments of the Trust, nor shall the Custodian
deliver any assets of the Trust to any such person. No
officer, director, employee or agent of the Custodian who
holds any similar position with the Trust or the investment
adviser shall have access to the assets of the Trust.
(b) The individual employees of the Custodian duly authorized
by the Board of Directors of the Custodian to have access to
the assets of the Trust are listed in the certification
annexed hereto as Appendix C. The Custodian shall advise the
Trust of any change in the individuals authorized to have
access to the assets of the Trust by written notice to the
Trust accompanied by a certified copy of the authorizing
resolution of the Custodians Board of Directors approving such
change.
(c) Nothing in this Section 10 shall prohibit any officer,
employee or agent of the Trust, or any officer, director,
employee or agent of the investment adviser, from giving Oral
Instructions or Written Instructions to the Custodian or
executing a Certificate so long as it does not result in
delivery of or access to assets of the Trust prohibited by
paragraph (a) of this Section 10.
11. CONCERNING THE CUSTODIAN.
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(a) STANDARD OF CONDUCT. Except as otherwise provided herein,
neither the Custodian nor its nominee shall be liable for any
loss or damage, including counsel fees, resulting from its
action or omission to act or otherwise, except for any such
loss or damage arising out of its own negligence or willful
misconduct. The Custodian may, with respect to questions of
law, apply for and obtain the advice and opinion of counsel to
the Trust or of its own counsel, at the expense of the Trust,
and shall be fully protected with respect to anything done or
omitted by it in good faith in conformity with such advice or
opinion. The Custodian shall be liable to the Trust for any
loss or damage resulting from the use of the Book-Entry System
or the Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the Custodian or any
of its employees or agents.
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(b) LIMIT OF DUTIES. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation
to inquire into, and shall not be liable for:
1. The validity of the issue of any Securities
purchased by the Trust, the legality of the purchase
thereof, or the propriety of the amount paid
therefor;
2. The legality of the sale of any Securities by the
Trust, or the propriety of the amount for which the
same are sold;
3. The legality of the issue or sale of any Shares,
or the sufficiency of the amount to be received
therefor;
4. The legality of the redemption of any Shares, or
the propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
dividend or other distribution of the Trust;
6. The legality of any borrowing for temporary or
emergency administrative purposes.
(c) NO LIABILITY UNTIL RECEIPT. The Custodian shall not be
liable for, or considered to be the Custodian of, any money,
whether or not represented by any check, draft, or other
instrument for the payment of money, received by it on behalf
of the Trust until the Custodian actually receives and
collects such money directly or by the final crediting of the
account representing the Trust's interest in the Book-Entry
System or the Depository. The Custodian shall exercise
diligence appropriate to first class mutual fund custodians in
pursuing payment on any such instrument, or any dividend,
interest or other receivable of the Trust.
(d) AMOUNTS DUE FROM TRANSFER AGENT. The Custodian shall not
be under any duty or obligation to take action to effect
collection of any amount due to the Trust from the Transfer
Agent nor to take any action to effect payment or distribution
by the Transfer Agent of any amount paid by the Custodian to
the Transfer Agent in accordance with this Agreement
(e) COLLECTION WHERE PAYMENT REFUSED. 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,
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unless and until (a) it shall be directed to take such action
by a Certificate and (b) it shall be assured to its
satisfaction of reimbursement of its costs and expenses in
connection with any such action.
(f) APPOINTMENT OF AGENTS AND SUB-CUSTODIANS. The Custodian
may appoint one or more banking institutions, including but
not limited to banking or other qualified institutions located
in foreign countries, to act as Depository or Depositories or
as Sub-Custodian or as Sub-Custodians of Securities and moneys
at any time owned by the Trust, upon terms and conditions
specified in a Certificate. The Custodian shall use reasonable
care in -selecting a Depository and/or Sub-Custodian located
in a country other than the United States ("Foreign
Sub-Custodian"), and shall oversee the maintenance of any
Securities or moneys of the Trust by any Foreign
Sub-Custodian. Any selection of and form of contract with a
Foreign Custodian shall be subject to approval by the Trust
that such selection and contract are consistent with the
requirements of Rule 17f-5 (and Rule 17f-4, if applicable)
under the 1940 Act, and the Custodian shall provide the Trust
with such information and recommendations as may be reasonably
necessary as a basis for such approval.
(g) NO DUTY TO ASCERTAIN AUTHORITY. The Custodian shall not be
under any duty or obligation to ascertain whether any
Securities at any time delivered to or held by it for the
Trust are such as may properly be held by the Trust under the
provisions of the Declaration of Trust and the Prospectus.
(h) COMPENSATION OF THE CUSTODIANS. The Custodian shall be
entitled to receive, and the Trust agrees to pay to the
Custodian, such compensation as may be agreed upon from time
to time between the Custodian and the Trust. The Custodian may
charge against any moneys of the Trust such compensation and
any expenses incurred by the Custodian in the performance of
its duties pursuant to such agreement with respect to the
Trust. The Custodian shall also be entitled to charge against
any money held by it the amount of any loss, damage, liability
or expense incurred with respect to the Trust, including
counsel fees, for which it shall be entitled to reimbursement
under the provisions of this Agreement.
The expenses which the Custodian may charge against
such account include, but are not limited to, the expenses of
Sub-Custodians and foreign branches of the Custodian incurred
in settling transactions outside of Boston, Massachusetts or
New York City, New York involving the purchase and sale of
Securities of any Portfolio.
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(i) RELIANCE ON CERTIFICATES AND INSTRUCTIONS. The Custodian
hall be entitled to rely upon any Certificate, notice or other
instrument in writing received by the Custodian and reasonably
believed by the Custodian to be genuine and to be signed by
the required number of officers of the Trust. The Custodian
shall be entitled to rely upon any Written Instructions or
Oral Instructions actually received by the Custodian pursuant
to the applicable Sections of this Agreement and reasonably
believed by the Custodian to be genuine and to be given by an
Authorized Person. The Trust agrees to forward to the
Custodian Written Instructions from an Authorized Person
confirming such Oral Instructions in such manner so that such
Written Instructions are received by the Custodian, whether by
hand -delivery, telex or otherwise, by the close of business
on the same day that such Oral Instructions are given to the
Custodian. The Trust agrees that the fact that such confirming
instructions are not received by the Custodian shall in no way
affect the validity of the transactions or enforceability of
the transactions hereby authorized by the Trust. The Trust
agrees that the Custodian shall incur no liability to the
Trust in acting upon Oral Instruction -given to the Custodian
hereunder concerning such transactions provided such
instructions reasonably appear to have been received from a
duly Authorized Person.
(j) INSPECTION OF BOOKS AND RECORDS. The books and records of
the Custodian shall be open to inspection and audit at
reasonable times by officers and auditors employed by the
Trust and by employees of the Securities and Exchange
Commission.
The Custodian shall provide the Trust with any report
obtained by the Custodian on the system of internal accounting
control of the Book-Entry System or the Depository and with
such reports on its own systems of internal accounting control
as the Trust may reasonably request from time to time.
12. TERM AND TERMINATION.
---------------------
(a) This Agreement shall become effective on the date first
set forth above and shall continue in effect thereafter from
year to year unless termination pursuant to Section 12(b) of
this Agreement.
(b) Either of the parties hereto may terminate this Agreement
by giving to the other party a notice in writing specifying
the date of such termination, which shall be not less than 120
days after the date of receipt of such notice. In the event
such notice is given by the Trust, it
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shall be accompanied by a certified resolution of the Board of
Trustees of the Trust, electing to terminate this Agreement
and designating a successor custodian or custodians, which
shall be a person qualified to so act under the 1940 Act or
undertaking to make such designation at least 30 days prior to
the termination date. In the event such notice is given by the
Custodian, the Trust shall, on or before the termination date,
deliver to the Custodian a certified resolution of the Board
of Trustees of the Trust, designating a successor custodian or
custodians. In the absence of such designation by the Trust,
the Custodian may designate a successor custodian, which shall
be a person qualified to so act under the ▇▇▇▇ ▇▇▇. If the
Trust fails to designate a successor custodian the Trust shall
upon the date specified in the notice of termination of this
Agreement and upon the delivery by the Custodian of all
Securities (other than Securities held in the Book-Entry
Systems which cannot be delivered to the Trust) and moneys
then owned by the Trust be deemed to be its own custodian and
the Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the
duty with respect to Securities held in the Book-Entry System
which cannot be delivered to the Trust.
(c) Upon the date set forth in such notice under paragraph (b)
of this Section 12, this Agreement shall terminate to the
extent specified in such notice, and the Custodian shall upon
receipt of a notice of acceptance by the successor custodian
on that date deliver directly to the successor custodian all
Securities and moneys then held by the Custodian after
deducting all fees, expenses and other amounts for the payment
or reimbursement of which it shall then be entitled and
otherwise cooperate in the transfer of its duties and
responsibilities hereunder.
13. MISCELLANEOUS.
--------------
(a) Annexed hereto as Appendix A is a certification signed by
the Secretary of the Trust setting forth the names and the
signatures of the present Authorized Persons. The Trust agrees
to furnish to the Custodian a new certification in similar
form in the event that any such present Authorized Person
ceases to be such an Authorized Person or in the event that
other or additional Authorized Persons are elected or
appointed. Until such new certification shall be received, the
Custodian shall be fully protected in acting under the
provisions of this Agreement upon Oral Instructions or
signatures of the present Authorized Persons as set forth in
the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by
the Secretary of the Trust setting forth the names and the
signatures of the
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present officers of the Trust. The Trust agrees to furnish to
the Custodian a new certification in similar form in the event
any such present officer ceases to be an officer of the Trust
or in the event that other or additional officers are elected
or appointed. Until such new certification shall be received,
the Custodian shall be fully protected in acting under the
provisions of this Agreement upon the signature of the
officers as set forth in the last delivered certification.
(c) The Custodian shall provide the Trust and/or its
investment manager such reports on securities and cash
positions, transaction fails, aging of receivables and other
relevant data as the Trust or investment manager may
reasonably require and shall reconcile any differences with
the records of such pricing and bookkeeping agent. The
Custodian will also timely provide the Trust's pricing and
bookkeeping agent with such information in the Custodian's
possession as the pricing and bookkeeping agent may reasonably
require.
(d) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall
be sufficiently given if addressed to the Custodian and mailed
or delivered to it at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ or at such other place
as the Custodian may from time to
time designate in writing.
(e) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Trust, shall be
sufficiently given if addressed to the Trust and mailed or
delivered to it at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇. ▇▇▇▇▇, or at such other
place as the Trust may from time to time designate in writing.
(f) 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 as may be
permitted or required by the ▇▇▇▇ ▇▇▇.
(g) 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 Trust without the written consent of the
Custodian, or by the Custodian without the written consent of
the Trust authorized or approved by a resolution of the Board
of Trustees of the Trust, and any attempted assignment without
such written consent shall be null and void.
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(h) This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts.
(i) It is expressly agreed to that the obligations of the
Trust hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents, or employees of the
Trust, personally, but bind only the trust property of the
Trust, as provided in the Declaration of Trust of the Trust.
The execution and delivery of this Agreement have been
authorized by the Trustees of the Trust and signed by an
authorized officer of the Trust, acting as such, and neither
such authorization by such Trustees nor such execution and
delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the
Trust as provided in its Declaration of Trust.
(j) The captions of the Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
(k) 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers
thereunder duly authorized as of the day and year first above
written.
TUDOR FUND
By: /S/
-----------------------------
BOSTON SAFE DEPOSIT AND
TRUST COMPANY
By: /S/
-----------------------------
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APPENDIX A
I, ▇▇▇▇ ▇. ▇▇▇▇, Secretary of TUDOR FUND, a Massachusetts business
trust (the "Trust"), do hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Oral Instructions and Written Instructions on behalf of the
Trust and the signatures set forth opposite their respective names are their
true and correct signatures
NAME SIGNATURE
---- ---------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇, Secretary
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APPENDIX C
The following individuals are authorized by Boston Safe Deposit and
Trust Company to have access to the assets of Tudor Fund:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
S. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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CUSTODY AGREEMENT
-----------------
FEE SCHEDULE
------------
SCHEDULE A
----------
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ Funds Trust, WPG Fund, WPG Growth Fund and Tudor
Fund (collectively referred to as the "Trusts") agree to pay to Boston Safe
Deposit and Trust Company the following fees. Such fees to be calculated on the
daily net assets of the combined Trusts.
DOMESTIC SAFEKEEPING FEE:
-------------------------
COMBINED ASSETS ANNUAL FEE RATE
--------------- ---------------
First $50 million .0002
Next $100 million .000175
Next $100 million .000150
Excess .000100
TRANSACTION CHARGES
-------------------
Fee per non-depository
eligible securities $17.00
Fee per depository
eligible securities $10.00
Fee per mortgage-backed
securities paydown $10.00
Fee per option and futures $17.00
Fee per foreign transaction $27.00
Fee per issue per annum $12.00
Fee per short term security held
in the account for two months or
longer $5.00
CREDIT INCOME
-------------
Income Collection on Equities and Bonds Interest Income will be
credited in good funds on payable date plus one.
GNMAE will be credited in good funds on the fourth (4th) business day
after payable date. First month principle and interest payment into a new pool
will be credited on a when collected basis.
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Variable Rate Bond Income will be credited upon receipt of good funds.
SPECIAL SERVICES
----------------
Fee for activities of a non recurring nature such as portfolio
consolidation or reorganization, extraordinary shipments and the preparation of
special reports will be subject to negotiation.
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CUSTODY AGREEMENT
-----------------
OUT-OF-POCKET EXPENSES
----------------------
SCHEDULE B
----------
Reimbursable out-of-pocket expenses will be added to each monthly
invoice and will include, but not limited to, such customary items as telephone,
wire charges ($5.50 per wire) postage, insurance, pricing services, courier
services and duplicating charges.
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