FORM OF CUSTODIAN SERVICING AGREEMENT
THIS AGREEMENT made on October 5, 1998, between The Xxxxx
Funds, a Delaware business trust (hereinafter called the "Trust"), and Firstar
Bank Milwaukee, a bank chartered under the laws of the State of Wisconsin
(hereinafter called the "Custodian"),
WHEREAS, the Trust desires that its securities and cash shall
be hereafter held and administered by the Custodian pursuant to the terms of
this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein made, the Trust and the 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 Trust by any two
of the President, a Vice President, the Secretary and the Treasurer of the
Trust, or any other persons duly authorized to sign by the Board of Trustees of
the Trust (the "Board").
2. Names, Titles, and Signatures of the Trust's Officers
An officer of the Trust will certify to the 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, together with any changes which may occur from time to time.
Additional Series. The Trust is authorized to issue separate
classes of shares of beneficial interest representing interests in separate
investment portfolios. The parties intend that each portfolio established by the
Trust, now or in the future, be covered by the terms and conditions of this
Agreement.
3. Receipt and Disbursement of Money
A. The Custodian shall open and maintain a separate account or
accounts in the name of the Trust, subject only to draft or order by
the Custodian acting pursuant to the terms of this Agreement. The
Custodian shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of
the Trust. The Custodian shall make payments of cash to, or for the
account of, the Trust from such cash only:
(a) for the purchase of securities for the portfolio of
the Trust upon the delivery of such securities to the
Custodian, registered in the name of the Trust or of
the nominee of the Custodian referred to in Section 7
of this Agreement or in proper form for transfer;
(b) for the purchase or redemption of shares of the
common stock of the Trust upon delivery thereof to
the Custodian, or upon proper instructions from the
Trust;
(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 Trust held by or to be delivered
to the Custodian; or
(e) for other proper corporate purposes certified by
resolution of the Board.
Before making any such payment, the 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 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 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 Trust issues
appropriate oral or facsimile instructions to the Custodian and an appropriate
officers' certificate is received by the Custodian within two business days
thereafter.
B. 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.
C. The Custodian shall, upon receipt of proper instructions,
make federal funds available to the Trust as of specified times agreed
upon from time to time by the Trust and the Custodian in the amount of
checks received in payment for shares of the Trust which are deposited
into the Trust's account.
4. Segregated Accounts
Upon receipt of proper instructions, the Custodian shall
establish and maintain a segregated account(s) for and on behalf of any Series
of the Trust, into which account(s) may be
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transferred cash and/or securities.
5. Transfer, Exchange, Redelivery, etc. of Securities
The Custodian shall have sole power to release or deliver any
securities of the Trust held by it pursuant to this Agreement. The Custodian
agrees to transfer, exchange or deliver securities held by it hereunder only:
(a) for sales of such securities for the account of the
Trust upon receipt by the Custodian of payment
therefore;
(b) when such securities are called, redeemed or retired
or otherwise become payable;
(c) for examination by any broker selling any such
securities in accordance with "street delivery"
custom;
(d) in exchange for, or upon conversion into, other
securities alone or other securities and cash whether
pursuant to any plan of merger, consolidation,
reorganization, recapitalization 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 Trust upon delivery thereof to the
Custodian; or
(i) for other proper corporate purposes.
As to any deliveries made by the Custodian pursuant to items
(a), (b), (d), (e), (f), and (g) above, securities or cash receivable in
exchange therefore shall be deliverable to the Custodian.
Before making any such transfer, exchange or delivery, the
Custodian shall receive (and may rely upon) an officers' certificate requesting
such transfer, exchange or delivery, and stating that it is for a purpose
permitted under the terms of items (a), (b), (c), (d), (e), (f), (g), or (h) of
this Section 5 and also, in respect of item (i), upon receipt of an officers'
certificate 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
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Trust issues appropriate oral or facsimile instructions to the Custodian and an
appropriate officers' certificate is received by the Custodian within two
business days thereafter.
6. Custodian's Acts Without Instructions
Unless and until the Custodian receives an officers'
certificate to the contrary, the Custodian shall: (a) present for payment all
coupons and other income items held by it for the account of the Trust, which
call for payment upon presentation and hold the cash received by it upon such
payment for the account of the Trust; (b) collect interest and cash dividends
received, with notice to the Trust, for the account of the Trust; (c) hold for
the account of the Trust 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 Trust, all necessary ownership certificates
required by the Internal Revenue Code of 1986, as amended (the "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 Trust's name on such
certificates as the owner of the securities covered thereby, to the extent it
may lawfully do so.
7. Registration of Securities
Except as otherwise directed by an officers' certificate, the
Custodian shall register all securities, except such as are in bearer form, in
the name of a registered nominee of the Custodian as defined in the 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. The 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.
The Trust shall from time to time 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, 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.
8. Voting and Other Action
Neither the Custodian nor any nominee of the Custodian shall
vote any of the securities held hereunder by or for the account of the Trust,
except in accordance with the instructions contained in an officers'
certificate. The Custodian shall deliver, or cause to be executed and delivered,
to the Trust 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 Trust), but without
indicating the manner in which such proxies are to be voted.
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9. Transfer Tax and Other Disbursements
The Trust shall pay or reimburse the Custodian from time to
time for any transfer taxes payable upon transfers of securities made hereunder,
and for all other necessary and proper disbursements and expenses made or
incurred by the Custodian in the performance of this Agreement.
The Custodian shall execute and deliver such certificates in
connection with securities delivered to it or by it under this Agreement as may
be required under the 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.
10. Concerning Custodian
The Custodian shall be paid as compensation for its services
pursuant to this Agreement such compensation as may from time to time be agreed
upon in writing between the two parties. Until modified in writing, such
compensation shall be as set forth in Exhibit A attached hereto. If the Trust
elects to terminate this Agreement prior to the first anniversary of this
Agreement, the Trust agrees to reimburse the Custodian for the difference
between the standard fee schedule and the discounted fee schedule agreed to
between the parties.
The Custodian shall not be liable for any action taken in good
faith upon any 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 Trust agrees to indemnify and hold harmless the Custodian
and its nominee from all taxes, charges, expenses, assessments, claims and
liabilities (including counsel fees) incurred or assessed against the Custodian
or by the Custodian's nominee in connection with the performance of this
Agreement, except such as may arise from its or its nominee's own negligent
action, negligent failure to act or willful misconduct. The Custodian is
authorized to charge any account of the Trust for such items.
In the event of any advance of cash for any purpose made by
the Custodian resulting from orders or instructions of the Trust, or in the
event that the Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection with the
performance of this Agreement, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the Trust shall be security
therefore.
The Custodian agrees to indemnify and hold harmless Trust from
all charges, expenses, assessments, and claims/liabilities (including counsel
fees) incurred or assessed against the Trust in connection with the performance
of this Agreement, except such as may arise from the Trust's own negligent
action, negligent failure to act, or willful misconduct.
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11. Subcustodians
The Custodian is hereby authorized to engage another bank or
trust company as a subcustodian for all or any part of the Trust's assets, so
long as any such bank or trust company is 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 provided further that, if the
Custodian utilizes the services of a subcustodian, the Custodian shall remain
fully liable and responsible for any losses caused to the Trust by the
subcustodian as fully as if the Custodian was directly responsible for any such
losses under the terms of this Agreement.
Notwithstanding anything contained herein, if the Trust
requires the Custodian to engage specific subcustodians for the safekeeping
and/or clearing of assets, the Trust agrees to indemnify and hold harmless the
Custodian from all claims, expenses and liabilities incurred or assessed against
it in connection with the use of such Subcustodian in regard to the Trust's
assets, except as may arise from its own negligent action, negligent failure to
act or willful misconduct.
12. Reports by Trust's Custodian
The Custodian shall furnish the Trust periodically as agreed
upon with a statement summarizing all transactions and entries for the account
of Trust. The Custodian shall furnish to the Trust, at the end of every month, a
list of the portfolio securities showing the aggregate cost of each issue. The
books and records of the Custodian pertaining to its actions under this
Agreement shall be open to inspection and audit at reasonable times by officers
of, and of auditors employed by, the Trust.
13. Termination or Assignment
This Agreement may be terminated by the Trust, or by the
Custodian, on ninety (90) days' notice, given in writing and sent by registered
mail to the Custodian at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the
Trust at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, as the case may be.
Upon any termination of this Agreement, pending appointment of a successor to
the Custodian or a vote of the shareholders of the Trust to dissolve or to
function without a custodian of its cash, securities and other property, the
Custodian shall not deliver cash, securities or other property of the Trust to
the Trust, but may deliver them to a bank or trust company of its own selection,
having an aggregate capital, surplus and undivided profits, as shown by its last
published report of not less than two million dollars ($2,000,000) as a
custodian for the Trust to be held under terms similar to those of this
Agreement, provided, however, that the Custodian shall not be required to make
any such delivery or payment until full payment shall have been made by the
Trust of all liabilities constituting a charge on or against the properties then
held by the Custodian or on or against the Custodian, and until full payment
shall have been made to the Custodian of all its fees, compensation, costs and
expenses, subject to the provisions of Section 10 of this Agreement.
This Agreement may not be assigned by the Custodian without
the consent of the Trust, authorized or approved by a resolution of its Board.
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14. Deposits of Securities in Securities Depositories
No provision of this Agreement shall be deemed to prevent the
use by the Custodian of a central securities clearing agency or securities
depository, provided, however, that the Custodian and the central securities
clearing agency or securities depository meet all applicable federal and state
laws and regulations, and the Board approves by resolution the use of such
central securities clearing agency or securities depository.
15. Records
To the extent that the Custodian in any capacity prepares or
maintains any records required to be maintained and preserved by the Trust
pursuant to the provisions of the Investment Company Act of 1940, as amended
(the "1940 Act"), or the rules and regulations promulgated thereunder, the
Custodian agrees to make any such records available to the Trust upon request
and to preserve such records for the periods prescribed in Rule 31a-2 under the
1940 Act.
16. Year 2000 Compliance
The Custodian represents that it has examined and tested its
internal systems which have been developed to support the services outlined
herein, and as of the date of this Agreement, has no knowledge of any situation
or circumstance that will inhibit the systems' ability to perform the expected
functions, or inhibit the Custodian's ability to provide the expected services
as a result of any business interruptions or other business problems relating to
dates or days before, during, and after the year 2000. In connection with the
foregoing, the Custodian represents that it has made reasonable inquiry of its
business partners and other entities with whom it conducts business and has
carefully considered the responses of those third-parties.
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.
THE XXXXX FUNDS FIRSTAR BANK MILWAUKEE
By:______________________________ By:______________________________
Print:____________________________ Print:____________________________
Title:____________________________ Title:____________________________
Date:____________________________ Date:____________________________
Attest:____________________________ Attest:____________________________
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EXHIBIT A
Custody Services
Annual Fee Schedule - Domestic Funds
|X| Annual fee based upon market value
! 2 basis points per year
! Minimum annual fee per fund - $3,000
|X| Investment transactions (purchase, sale, exchange, tender, redemption,
maturity, receipt, delivery):
o $12.00 per book entry security (depository or Federal Reserve
system)
o $25.00 per definitive security (physical)
o $25.00 per mutual fund trade
o $75.00 per Euroclear
o $ 8.00 per principal reduction on pass-through certificates
o $35.00 per option/futures contract
o $15.00 per variation margin
o $15.00 per Fed wire deposit or withdrawal
|X| Variable Amount Demand Notes: Used as a short-term investment,
variable amount notes offer safety and prevailing high interest rates.
Our charge, which is 1/4 of 1%, is deducted from the variable amount
note income at the time it is credited to your account.
|X| Plus out-of-pocket expenses, and extraordinary expenses based upon
complexity
|X| Fees are billed monthly, based upon market value at the beginning of
the month
Dated as of October 5, 1998
