CUSTODIAN AGREEMENT
THIS AGREEMENT made on this eighth day of October, 1996, between
X'Xxxxxxxxxxx Funds, Inc., a Maryland Corporation, (hereinafter called the
"Funds"), which is an open-end, diversified mutual fund, and FIRSTAR TRUST
COMPANY, a corporation organized under the laws of the State of Wisconsin
(hereinafter called "Custodian"),
WHEREAS, the Funds desire that the securities and cash of each of
its investment portfolios shall be hereafter held and administered by Custodian
pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
made, the Funds and Custodian agree as follows:
1. Definitions
The word "securities" as used herein includes stocks, shares,
bonds, debentures, notes, mortgages or other obligations, and any certificates,
receipts, warrants or other instruments representing rights to receive, purchase
or subscribe for the same, or evidencing or representing any other rights or
interests therein, or in any property or assets.
The words "officers' certificate" shall mean a request or
direction or certification in writing signed in the name of the Funds by any two
of the President, a Vice President, the Secretary or the Treasurer of the Funds,
or any other persons duly authorized to sign by the Board of Directors. For
purpose of section 4.A of this agreement the following shall constitute
officers' certificates; (1) with respect to payments to or from the account of
the Funds pursuant to items (a) and (d) of section 4.A, a copy of a trade
ticket, signed by one officer of the Funds and one other duly authorized person;
and (2) with respect to payments to or from the account of the Funds pursuant to
item (b) of section 4.A, written documentation received from the Funds' transfer
agent, signed by one or more duly authorized persons by said transfer agent.
Officers' certificates transmitted via mail, courier, or facsimile are
considered to be in acceptable form for purposes of this agreement.
The word "Board" shall mean Board of Directors of X'Xxxxxxxxxxx
Funds, Inc.
2. Names, Titles, and Signatures of the Funds' Officers
An officer of the Funds will certify to Custodian the names and
signatures of those persons authorized to sign the officers' certificates
described in Section 1 hereof, and the names of the members of the Board of
Directors, together with any changes which may occur from time to time.
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3. Additional Series.
The Funds are authorized to issue separate investment portfolios
or series of shares. The parties intend that each portfolio established by the
Funds, now or in the future, be covered by the terms and conditions of this
agreement. The portfolios covered by this agreement are set forth on schedule A,
as it may be amended from time to time.
4. Receipt and Disbursement of Money
A. Custodian shall open and maintain a separate account or
accounts in the name of the Funds, subject only to draft or order by Custodian
acting pursuant to the terms of this Agreement. Custodian shall hold in such
account or accounts, subject to the provisions hereof, all cash received by it
from or for the account of the Funds, other than cash maintained by the Funds in
a bank account established and used in accordance with Rule 17f-3 under the
Investment Company Act of 1940. Custodian shall make payments of cash to, or for
the account of, the Funds from such cash only:
(a) for the purchase of securities for the portfolio of the
Funds upon the delivery of such securities to Custodian,
registered in the name of the Funds or of the nominee of
Custodian referred to in Section 7 or in proper form for
transfer;
(b) for the purchase or redemption or repurchase of shares of
the common stock of the Funds upon delivery thereof to
Custodian, or upon proper instructions from the Funds;
(c) for the payment of interest, dividends, taxes, investment
adviser's fees or operating expenses (including, without
limitation thereto, fees for legal, accounting, auditing
and custodian services and expenses for printing and
postage);
(d) for payments in connection with the conversion, exchange
or surrender of securities owned or subscribed to by the
Funds held by or to be delivered to Custodian; or
(e) for other proper corporate purposes certified by
resolution of the Board of Directors of the Funds.
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Before making any such payment, Custodian shall receive (and may
rely upon) an officers' certificate requesting such payment and stating that it
is for a purpose permitted under the terms of items (a), (b), (c), or (d) of
this Subsection A, and also, in respect of item (e), upon receipt of an
officers' certificate, and a certified copy of a resolution of the Board of
Directors of the Funds signed by an officer of the Funds and certified by its
secretary or assistant secretary, specifying the amount of such payment, setting
forth the purpose for which such payment is to be made, declaring such purpose
to be a proper corporate purpose, and naming the person or persons to whom such
payment is to be made, provided, however, that an officers' certificate and
certified Board resolution need not precede the disbursement of cash for the
purpose of purchasing a money market instrument, or any other security with same
or next-day settlement, if the President, a Vice President, the Secretary or the
Treasurer of the Funds issues appropriate oral instructions to Custodian and an
appropriate officers' certificate is received by Custodian within two business
days thereafter.
B. Custodian is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money received by Custodian
for the account of the Funds.
C. Custodian shall, upon receipt of officers' certificate, make
federal funds available to the Funds as of specified times agreed upon from time
to time by the Funds and the custodian in the amount of checks received in
payment for shares of the Funds which are deposited into the Fund's account.
5. Segregated Accounts
Upon receipt of an officer's certificate, the Custodian shall
establish and maintain a segregated account(s) for and on behalf of the Funds,
into which account(s) may be transferred cash and/or securities.
6. Transfer, Exchange, Redelivery, etc. of Securities
Custodian shall hold and physically segregrate for the account of
the Funds all securities owned by the Funds, other than those held in a
book-entry account maintained for the custodian by a Federal Reserve Bank or in
a securities depository as provided in section 14 hereof. Custodian shall have
sole power to release or deliver any securities of the Funds held by it pursuant
to this Agreement. Custodian agrees to transfer, exchange or deliver securities
held by it hereunder only:
(a) for sales of such securities for the account of the Funds
upon receipt by Custodian of payment therefore;
(b) when such securities are called, redeemed or retired or
otherwise become payable;
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(c) for examination by any broker selling any such securities
in accordance with "street delivery" custom;
(d) in exchange for, or upon conversion into, other
securities alone or other securities and cash whether
pursuant to any plan of merger, consolidation,
reorganization, recapitalization or readjustment, or
otherwise;
(e) upon conversion of such securities pursuant to their
terms into other securities;
(f) upon exercise of subscription, purchase or other similar
rights represented by such securities;
(g) for the purpose of exchanging interim receipts or
temporary securities for definitive securities;
(h) for the purpose of redeeming in kind shares of common
stock of the Funds upon delivery thereof to Custodian;
(i) upon the receipt of payment in connection with any
repurchase agreement related to such securities entered
into by the Funds;
(j) for delivery in connection with any loans of securities
made by the Funds, but only against receipt of adequate
collateral as agreed upon from time to time by the
Custodian and the Funds, which may be in the form of cash
or obligations issued by the United States government,
its agencies or instrumentalities;
(k) for delivery as security in connection with any
borrowings by the Funds requiring a pledge of assets by
the Funds, but only against receipt of amounts borrowed;
(l) for delivery in accordance with the provisions of any
agreement among the Funds, the Custodian and a
broker-dealer registered under the Securities Exchange
Act of 1934 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc.
("NASD"), relating to compliance with the rules of The
Options Clearing Corporation and of any registered
national securities exchange, or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions by the
Funds;
(m) for delivery in accordance with the provisions of any
agreement among the Funds, the Custodian, 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, or any similar organization or
organizations, regarding account deposits in connection
with transactions by the Funds; or
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(n) for other proper corporate purposes.
As to any deliveries made by Custodian pursuant to items (a),
(b), (d), (e), (f), and (g), securities or cash receivable in exchange therefore
shall be deliverable to Custodian.
Before making any such transfer, exchange or delivery, Custodian
shall receive (and may rely upon) an officers' certificate requesting such
transfer, exchange or delivery, and stating that it is for a purpose permitted
under the terms of items (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k),
(l), or (m) of this Section 6 and also, in respect of item (n), upon receipt of
an officers' certificate, and a certified copy of a resolution of the Board of
Directors of the Funds signed by an officer of the corporation and certified by
its secretary or assistant secretary, specifying the securities to be delivered,
setting forth the purpose for which such delivery is to be made, declaring such
purpose to be a proper corporate purpose, and naming the person or persons to
whom delivery of such securities shall be made, provided, however, that an
officers' certificate need not precede any such transfer, exchange or delivery
of a money market instrument, or any other security with same or next-day
settlement, if the President, a Vice President, the Secretary or the Treasurer
of the Funds issues appropriate oral instructions to Custodian and an
appropriate officers' certificate is received by Custodian within two business
days thereafter.
7. Custodian's Acts Without Instructions
Unless and until Custodian receives an officers' certificate to
the contrary, Custodian shall: (a) present for payment all coupons and other
income items held by it for the account of the Funds, which call for payment
upon presentation and hold the cash received by it upon such payment for the
account of the Funds; (b) collect interest and cash dividends received, with
notice to the Funds, for the account of the Funds; (c) hold for the account of
the Funds hereunder all stock dividends, rights and similar securities issued
with respect to any securities held by it hereunder; and (d) execute, as agent
on behalf of the Funds, all necessary ownership certificates required by the
Internal Revenue Code or the Income Tax Regulations of the United States
Treasury Department or under the laws of any state now or hereafter in effect,
inserting the Funds' name on such certificates as the owner of the securities
covered thereby, to the extent it may lawfully do so.
8. Registration of Securities
Except as otherwise directed by an officers' certificate,
Custodian shall register all securities, except such as are in bearer form, in
the name of a registered nominee of Custodian as defined in the Internal Revenue
Code and any Regulations of the Treasury Department issued hereunder or in any
provision of any subsequent federal tax law exempting such transaction from
liability for stock transfer taxes, and shall execute and deliver all such
certificates in connection therewith as may be required by such laws or
regulations or under the laws of any state. Custodian shall use its best efforts
to the end that the specific securities held by it hereunder shall be at all
times identifiable in its records.
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The Funds shall from time to time furnish to Custodian
appropriate instruments to enable Custodian to hold or deliver in proper form
for transfer, or to register in the name of its registered nominee, any
securities which it may hold for the account of the Funds and which may from
time to time be registered in the name of the Funds.
9. Voting and Other Action
Neither Custodian nor any nominee of Custodian shall vote any of
the securities held hereunder by or for the account of the Funds, except in
accordance with the instructions contained in an officers' certificate.
Custodian shall promptly deliver, or cause to be executed and delivered, to the
Corporation all notices, proxies and proxy soliciting materials with relation to
such securities, such proxies to be executed by the registered holder of such
securities (if registered otherwise than in the name of the Funds), but without
indicating the manner in which such proxies are to be voted.
10. Transfer Tax and Other Disbursements
The Funds shall pay or reimburse Custodian from time to time for
any transfer taxes payable upon transfers of securities made hereunder, and for
all other necessary and proper disbursements and expenses made or incurred by
Custodian in the performance of this Agreement.
Custodian shall execute and deliver such certificates in
connection with securities delivered to it or by it under this Agreement as may
be required under the provisions of the Internal Revenue Code and any
Regulations of the Treasury Department issued thereunder, or under the laws of
any state, to exempt from taxation any exemptable transfers and/or deliveries of
any such securities.
11. Concerning Custodian
Custodian shall be paid as compensation for its services pursuant
to this Agreement such compensation as may from time to time be agreed upon in
writing between the two parties. Until modified in writing, such compensation
shall be as set forth in Exhibit A attached hereto Commission. If the Funds
elect to terminate this Agreement prior to the third anniversary of this
Agreement, the Funds agree to reimburse Agent for the difference between the
standard fee schedule and the discounted fee schedule agreed to between the
parties.
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Custodian shall exercise reasonable care and diligence, act in
good faith and use its best efforts within reasonable limits in the performance
of its duties under this agreement. Custodian shall not be liable for any action
taken in good faith upon any officers' certificate herein described or certified
copy of any resolution of the Board, and may rely on the genuineness of any such
document which it may in good faith believe to have been validly executed.
The Funds agree to indemnify and hold harmless Custodian and its
nominee from all taxes, charges, expenses, assessments, claims and liabilities
(including reasonable counsel fees) incurred or assessed against it or by its
nominee in connection with the performance of this Agreement, except such as may
arise from its or its nominee's own negligent action, negligent failure to act
or willful misconduct. Custodian is authorized to charge any account of the
Funds for such items.
In the event of any advance of cash for any purpose made by
Custodian resulting from orders or instructions of the Funds, or in the event
that Custodian or its nominee shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with the performance
of this Agreement, except such as may arise from its or its nominee's own
negligent action, negligent failure to act or willful misconduct, any property
at any time held for the account of the Funds shall be security therefore.
Custodian agrees to indemnify and hold harmless the Funds from
all charges, expenses, assessments, and claims/liabilities (including counsel
fees) incurred or assessed against it in connection with the performance of this
agreement, except such as may arise from the Funds' own negligent action,
negligent failure to act, or willful misconduct.
12. Subcustodians
Custodian is hereby authorized to engage another bank or trust
company as a Subcustodian for all or any part of the Funds' assets in accordance
with the terms of this agreement, so long as any such bank or trust company is
(i) a bank or trust company organized under the laws of any state of the United
States, having an aggregate capital, surplus and undivided profit, as shown by
its last published report, of not less than Two Million Dollars ($2,000,000) and
(ii) qualified to act as a custodian under the Investment Company Act of 1940,
and provided further that the use of each such subcustodian shall be approved or
ratified by a vote of a majority of the Board of Directors of the Funds. If the
Custodian utilizes the services of a Subcustodian, the Custodian shall not be
relieved of any of its responsibilities hereunder by the appointment of such
Subcustodian and shall remain fully liable and responsible for the acts of the
Subcustodian and for any losses caused to the Funds by the Subcustodian as fully
as if the Custodian was directly responsible for any such acts or losses under
the terms of the Custodian Agreement.
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Notwithstanding anything contained herein, if the Funds requires
the Custodian to engage specific Subcustodians for the safekeeping and/or
clearing of assets, the Funds agree to indemnify and hold harmless Custodian
from all claims, expenses and liabilities incurred or assessed against it in
connection with the use of such Subcustodian in regard to the Funds' assets,
except as may arise from its own negligent action, negligent failure to act or
willful misconduct.
13. Reports by Custodian
Custodian shall furnish the Funds periodically as agreed upon
with a statement summarizing all transactions and entries for the account of the
Funds. Custodian shall furnish to the Funds, at the end of every month, a list
of the portfolio securities showing the aggregate cost of each issue. The books
and records of Custodian pertaining to its actions under this Agreement shall be
open to inspection and audit at reasonable times by officers of, and of auditors
employed by, the Funds.
14. Termination or Assignment
This Agreement may be terminated by the Funds, or by Custodian,
on ninety (90) days notice, given in writing and sent by registered mail to
Custodian at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Funds at 00
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 as the case may be. Upon any
termination of this Agreement, pending appointment of a successor to Custodian
or a vote of the shareholders of the Funds to dissolve or to function without a
custodian of its cash, securities and other property, Custodian shall not
deliver cash, securities or other property of the Funds to the Funds, but may
deliver them to a bank or trust company of its own selection, qualified to act
as a custodian under the Investment Company Act of 1940 and having an aggregate
capital, surplus and undivided profits, as shown by its last published report of
not less than Two Million Dollars ($2,000,000), as a Custodian for the Funds to
be held under terms similar to those of this Agreement, provided, however, that
Custodian shall not be required to make any such delivery or payment until full
payment shall have been made by the Funds of all liabilities constituting a
charge on or against the properties then held by Custodian or on or against
Custodian, and until full payment shall have been made to Custodian of all its
fees, compensation, costs and expenses, subject to the provisions of Section 10
of this Agreement.
This Agreement may not be assigned by Custodian without the
consent of the Funds, authorized or approved by a resolution of its Board of
Directors.
15. Deposits of Securities in Securities Depositories
No provision of this Agreement shall be deemed to prevent the use
by Custodian of a central securities clearing agency or securities depository,
provided, however, that Custodian and the central securities clearing agency or
securities depository meet all applicable federal and state laws and
regulations, and the Board of Directors of the Funds approves by resolution the
use of such central securities clearing agency or securities depository.
16. Records
To the extent that Custodian in any capacity prepares or
maintains any records required to be maintained and preserved by the Funds
pursuant to the provisions of the Investment Company Act of 1940, as amended, or
the rules and regulations promulgated thereunder, Custodian agrees to make any
such records available to the Funds upon request and to preserve such records
for the periods prescribed in Rule 31a-2 under the Investment Company Act of
1940, as amended.
17. Notices
Any notices required or desired to be given to any party hereto
shall be in writing, shall be addressed to such other party at that party's
address set forth below and shall be deemed given when deposited in the United
States mail, certified, return receipt requested, or actually received by the
party to whom it was addressed if delivered by an alternate method. Any party
may change the address to which notices or other communications are to be given
by giving the other parties notice of such change.
Custodian Firstar Trust Company
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
The Funds X'Xxxxxxxxxxx Funds, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
18. Governing Law
This agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of Wisconsin.
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19. Severability
The intention of the parties to this Agreement is to comply fully
with all laws, rules, regulations and public policies, and this Agreement shall
be construed consistently with all laws, rules, regulations and public policies
to the extent possible. If and to the extent that any court of competent
jurisdiction determines it is impossible to construe any provision of this
Agreement consistently with any law, rule, regulation or public policy and
consequently holds that provision to be invalid, such holding shall in no way
affect the validity of the other provisions of this Agreement, which shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and their respective corporate seals to be affixed hereto as of
the date first above-written by their respective officers thereunto duly
authorized.
Executed in several counterparts, each of which is an original.
Attest: FIRSTAR TRUST COMPANY
________________________________ By ____________________________
Assistant Secretary Vice President
Attest: X'Xxxxxxxxxxx Funds, Inc.
________________________________ By ____________________________
Date:___________________________ Date:__________________________
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