CUSTODIAN AGREEMENT
THIS AGREEMENT is made as of the 23rd day of November, 1993,
between XXXXXXXX EQUITY INCOME FUND, INC., a Maryland corporation
(the "Fund"), and FIRSTAR TRUST COMPANY, a Wisconsin corporation
(the "Custodian").
W I T N E S S E T H:
WHEREAS, the Fund desires that its securities and cash shall
be hereafter held and administered by the Custodian pursuant to
the terms of this Agreement and the Custodian desires to hold and
administer such securities and cash.
NOW, THEREAFTER, in consideration of the mutual agreements
herein made, the Fund and the Custodian agree as follows:
Section 1. Appointment and Acceptance of Custodian.
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The Fund hereby constitutes and appoints the Custodian as
custodian of all of its securities and cash and the Custodian
hereby accepts such appointment. The Fund will promptly deliver
to the Custodian all securities and cash now owned by it and
hereafter from time to time conveyed into its possession.
Section 2. Definitions; Names, Titles and Signatures of
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Fund's Officers.
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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
Fund by either any two of the President, an Executive Vice
President, a Senior Vice President, a Vice President, the
Secretary and the Treasurer of the Fund, or any one of the
foregoing officers and one of the Fund's directors or the Fund's
counsel.
The President or an Executive Vice President, Senior Vice
President, Vice President, Secretary or Assistant Secretary of
the Fund will certify to the Custodian the names and signatures
of those persons authorized to sign the officers' certificates
described in this Section 2 and the names of the members of the
Board of Directors, together with any changes which may occur
from time to time.
Section 3. Receipt and Disbursement of Money.
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The Custodian shall hold in a separate account or accounts,
and physically segregated at all times from those of any other
persons, firms or corporations, pursuant to the provisions
hereof, in the name of the Fund subject only to draft or order by
the Custodian acting pursuant to the terms of this Agreement, all
cash received by it from or for the account of the Fund. The
Custodian shall credit to such account or accounts of the Fund
all cash received by it for the account of the Fund, allocated
into such principal and interest accounts as the Fund shall
direct. Upon receipt of an officers' certificate from the Fund,
the Custodian may open and maintain an additional account or
accounts in such other banks or trust companies as may be
designated in such officers' certificate, such accounts, however,
to be in the name of the Custodian and subject only to its draft
or order.
The Custodian shall make payments of cash to, or for the
account of, the Fund from such cash only:
(a) for the purchase of securities for the
portfolio of the Fund upon the delivery of such
securities to the Custodian, registered in the
name of the Fund or of the nominee of the
Custodian referred to in Section 7 hereof or in
proper form for transfer;
(b) for the purchase or redemption of shares
of Common Stock of the Fund upon delivery thereof
to the Custodian;
(c) for the payment of interest, dividends,
capital gains (if any), taxes, management or
supervisory fees or operating expenses (including,
without limitation, fees for legal, accounting,
auditing, custodian, dividend disbursement and
transfer agent services);
(d) for payments in connection with the
conversion, exchange or surrender of securities
owned or subscribed to by the Fund held by or to
be delivered to the Custodian; or
(e) for other proper corporate purposes.
Except as provided below, before making any such payment the
Custodian shall receive (and may rely upon) either 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)
above, or, in respect of item (e), an officers' certificate and a
certified copy of a resolution of the Board of Directors signed
by an officer of the Fund and certified by its Secretary or an
Assistant Secretary specifying the amount of such payment setting
forth the purpose for which such payment is to be made, declaring
such purpose to be a proper corporate purpose, and naming the
person or persons to whom such payment is to be made.
An officers' certificate need not precede the disbursement
of cash for the purpose of purchasing a money market instrument
if any one of the Fund's officers issues oral instructions to the
Custodian and an appropriate officers' certificate is received by
the Custodian within two business days thereafter.
The Custodian is hereby authorized to endorse and collect
all checks, drafts or other orders for the payment of money
received by the Custodian for the account of the Fund.
Section 4. Receipt of Securities.
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The Custodian shall deposit and hold in a separate account
and physically segregated at all times from those of any other
persons, firms or corporations, pursuant to the provisions
hereof, all securities received by it from and for the account of
the Fund. The Custodian, by book entry or otherwise, shall
identify as belonging to the Fund a quantity of securities in a
fungible bulk of securities registered in the name of the
Custodian or its nominee or shown in the Custodian's book entry
system. All such securities are to be held or disposed of by the
Custodian for, and subject at all times to the instructions of,
the Fund pursuant to the terms of this Agreement. The Custodian
shall have no power or authority to assign, hypothecate, pledge
or otherwise dispose of any such securities and investments
except pursuant to the directive of the Fund and only for the
account of the Fund as set forth in Section 5 of this Agreement.
Section 5. Transfer, Exchange, Redelivery, etc. of
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Securities.
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The Custodian shall have sole power to release or deliver
any securities of the Fund held by it pursuant to this Agreement.
The Custodian agrees to transfer, exchange or deliver securities
held by it hereunder only:
(a) for sales of such securities for the
account of the Fund upon receipt by the Custodian
of payment therefor;
(b) when such securities are called,
redeemed or retired or otherwise become payable;
(c) for examination by any broker selling
any such securities in accordance with "street
delivery" customs;
(d) in exchange for or upon conversion into
other securities alone or other securities and
cash whether pursuant to any plan of liquidation,
refinancing, merger, consolidation,
reorganization, recapitalization, 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 capital stock of the Fund upon delivery
thereof to the Custodian; or
(i) for other proper corporate purposes.
As to any deliveries made by the Custodian pursuant to items (b),
(d), (e), (f) and (g), securities or cash receivable in exchange
therefor shall be deliverable to the Custodian. Before making
any such transfer, exchange or delivery the Custodian shall
receive (and may rely upon) either 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 or, in respect
of item (i), an officers' certificate and a copy of a resolution
of the Board of Directors certified by its Secretary or an
Assistant Secretary specifying the securities to be transferred,
exchanged or delivered setting forth the purpose for which such
transfer, exchange or delivery is to be made, declaring such
purpose to be a proper corporate purpose and naming the person or
persons to whom such transfer, exchange or delivery of such
securities is to be made. An officers' certificate need not
precede such transfer, exchange or delivery of securities if any
one of the Fund's officers issues oral instructions to the
Custodian and an appropriate officers' certificate is received by
the Custodian within two business days thereafter.
Section 6. Custodian's Acts Without Instructions.
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Unless and until the Custodian receives an officers'
certificate to the contrary, the Custodian shall:
(a) present for payment all coupons and
other 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;
(b) collect all income, profits, earnings,
dividends, rights, interest and other
distributions and collect all payments on account
of principal or securities sold, due, exchanged or
called for redemption;
(c) hold for the account of the Fund
hereunder all stock dividends, rights and similar
securities issued with respect to any security
held by it hereunder;
(d) surrender securities in temporary form
for definitive securities; and
(e) execute as agent on behalf of the Fund
all necessary ownership certificates required by
the Internal Revenue Code or the Income Tax
Regulations of the United States Treasury
Department or under the laws of any State now or
hereafter in effect, inserting the Fund's name on
such certificates as the owner of the securities
covered thereby, to the extent it may lawfully do
so.
Section 7. Registration of Securities.
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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 Internal Revenue Code and any
Regulations of the Treasury Department issued thereunder or in
any provision of any subsequent Federal tax law exempting such
transaction from liability for stock transfer taxes, and shall
execute and deliver 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 Fund 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 Fund and which may from time to time be
registered in the name of the Fund.
Section 8. Deposit of Portfolio Securities in Book Entry
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Systems.
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The Custodian may deposit all or any part of the securities
held by it under this Agreement and eligible therefor in the
Federal book entry system or any clearing agency acting as a
securities depository ("Depository System") covered by Rule 17f-
4(b) under the Investment Company Act of 1940, as amended (the
"1940 Act"). In the case of the Federal book entry system, the
Custodian may deposit such securities through an agent which is
qualified to act as a custodian for investment companies under
the 1940 Act. Any such deposits must be made in compliance with
the following:
(a) the Custodian and its agent shall comply
in all respects with clauses (d)(1) through (d)(4)
of Rule 17f-4 under the 1940 Act;
(b) all books and records maintained by the
Custodian and its agent which relate to the Fund's
participation in such Depository Systems will at
all times during regular business hours be open to
inspection by the Fund's duly authorized officers,
employees, agents and auditors, and the Fund will
be furnished with all the information in respect
of the services rendered to it as it may require;
(c) in connection with the use of such
Depository Systems, the Custodian will be liable
to the Fund for any losses or damages relating to
the failure to effectively enforce such rights as
may exist against such Depository Systems;
(d) payment for securities purchased for the
account of the Fund shall be made only upon:
(i) receipt of advice from the
Depository System that such purchased
securities have been transferred to the
account (the "Customer Only Account")
contemplated by clause (d)(2) of Rule 17f-4
under the 1940 Act; and
(ii) the making of an entry on the
records of the Custodian to reflect such
payment and transfer for the account of the
Fund; and
(e) transfer of securities sold for the
account of the Fund shall be made only upon:
(i) receipt of advice from the
Depository System that payment for such
securities have been transferred to the
Customer Only Account; and
(ii) the making of an entry on the
records of the Custodian to reflect such
transfer of sold securities and transfer of
payment for the account of the Fund.
Section 9. Voting and Other Action.
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Neither the Custodian nor any nominee of the Custodian shall
vote any of the securities held hereunder by or for the account
of the Fund, except in accordance with the instructions contained
in an officers' certificate. The Custodian shall deliver, or
cause to be executed and delivered to the Fund, 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 Fund), but without indicating the manner in which such
proxies are to be voted.
Section 10. Transfer Tax and Other Disbursements.
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The Fund shall pay or reimburse the Custodian from time to
time for any transfer taxes payable upon transfers of securities
made hereunder and for all other necessary and proper
disbursements and expenses made or incurred by the Custodian in
the performance of this Agreement.
The Custodian shall execute and deliver such certificates in
connection with securities delivered to it or by it under this
Agreement as may be required under the 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 exemptible transfers and/or deliveries of any such
securities.
Section 11. Concerning Custodian.
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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 between the Custodian and the Fund, such
compensation shall be as set forth in Exhibit A attached hereto.
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 of Directors, and may rely on
the genuineness of any such document which it may in good faith
believe to have been validly executed.
The Fund agrees to indemnify and hold harmless the Custodian
and its nominee from all taxes, charges, expenses, assessments,
claims and liabilities (including legal counsel fees) incurred or
assessed against it or its nominee in connection with the
performance of this Agreement, except such as may arise from its
or its nominee's own negligent action, negligent failure to act
or willful misconduct. The Custodian is authorized to charge any
account of the Fund for such items. In the event of any advance
of cash for any purpose made by the Custodian resulting from
orders or instructions of the Fund or in the event that the
Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in
connection with the performance of this Agreement, except such as
may arise from its or its nominee's own negligent action,
negligent failure to act or willful misconduct, any property at
any time held for the account of the Fund shall be security
therefor.
Section 12. Reports by Custodian.
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The Custodian shall furnish the Fund with the following
written reports or advices:
(a) daily advices or confirmations showing
all securities purchased and prices paid therefor,
securities sold and prices received therefor and
all other transactions affecting securities held
for the account of the Fund;
(b) daily statements setting forth a summary
of all transactions made or which took place with
respect to the account of the Fund;
(c) promptly, all reports it receives from
the appropriate Federal Reserve Bank or clearing
agency, any other regulatory authority, or
independent auditors on its respective system of
internal accounting control; and
(d) all reports reasonably requested by the
Fund from time to time relating to the Custodian's
or its agent's own system of internal accounting
control.
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 auditors employed by
the Fund.
Section 13. Termination or Assignment.
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This Agreement may be terminated by the Fund, or by the
Custodian, on 60 days' notice, given in writing and sent by
certified mail to the Custodian at 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, or to the Fund at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, as the case may be. The
notice to the Custodian shall be given pursuant to a resolution
adopted by the Board of Directors of the Fund. Upon termination
of this Agreement, the Custodian shall deliver to the successor
custodian of the Fund designated in a certified copy of a
resolution of the Board of Directors of the Fund filed with the
Custodian all cash, securities and related instruments held by
the Custodian. Any securities registered in the name of the
Custodian or its nominee shall be endorsed in form for transfer.
The Fund agrees to name such successor custodian within 60 days
after the written notice of termination of this Agreement is
received or delivered by it.
This Agreement may not be assigned by Custodian without the
consent of the Fund, authorized or approved by a resolution of
its Board of Directors.
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.
FIRSTAR TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
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Authorized Officer
Attest: /s/ Xxxxxx Xxxxxxx
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Assistant Secretary
XXXXXXXX EQUITY INCOME FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
Attest: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
Executive Vice President
and Secretary
FIRSTAR TRUST COMPANY
To: Xxx Xxxxxx
From: Xxx Xxxxx
Date: December 24, 1997
Re: Xxxxxxxx Fund Fees For Calendar Years 1998 through 2000
TRANSFER AGENT FEES
Current
1997 1998 1999 2000
---- ---- ---- ----
First 20,000 $13.40 $14.00 $14.20 $14.40
Next 40,000 12.65 13.25 13.45 13.65
Next 40,000 12.15 12.75 12.95 13.15
100,000 to 275,000 11.90 12.50 12.70 12.90
Over 275,000 10.00 10.60 10.80 11.00
Money Market Fund 14.40 15.00 15.20 15.40
Closed Accounts Billed @ $6.00 per account
CUSTODIAN FEES:
MARKET VALUE BASED FEE:
First 7 Billion: 0/0 Xxxxx Xxxxx or (.00005)
Excess over 7 Billion: 0/00 Xxxxx Xxxxx or (.00004)
TRANSACTION BASED FEES:
DTC/Fed Book Entry Transactions: The fees for the first 6,000 trades per
year will be waived, we will charge $6.00 for these trades thereafter.
Physical Delivery trades will be charged @ $12.00 per trade.
There will be no fees for commercial paper or demand note transactions.
