CUSTODIAN SERVICING AGREEMENT
THIS AGREEMENT made as of October 1, 1997,
between Xxxx Funds, Inc., a Minnesota corporation
(hereinafter called the "Company"), and Firstar Trust
Company, a corporation organized under the laws of the
State of Wisconsin (hereinafter called "Custodian").
WHEREAS, the Company is an open-end management
investment company which is registered under the
Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Company is authorized to create
separate series, each with its own separate investment
portfolio; and
WHEREAS, the Company desires that the
securities and cash of the Emerging Growth Fund (the
"Fund") and each additional series of the Company
listed on Exhibit A attached hereto, as may be amended
from time to time, 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 Company 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 Company by any two of the President,
a Vice President, the Secretary and the Treasurer of
the Company, or any other persons duly authorized to
sign by the Board of Directors.
The word "Board" shall mean Board of Directors
of the Xxxx Funds, Inc.
2. Names, Titles, and Signatures of the Company's
Officers
An officer of the Company 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.
3. Receipt and Disbursement of Money
A. Custodian shall open and maintain a
separate account or accounts in the name of the
Company, 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
Company. Custodian shall make payments of cash to, or
for the account of, the Company from such cash only:
(a)for the purchase of securities for the portfolio of
the Fund upon the delivery of such
securities to Custodian, registered in the
name of the Company or of the nominee of
Custodian referred to in Section 7 or in
proper form for transfer;
(b)for the purchase or redemption of shares of the
common stock of the Fund upon delivery
thereof to Custodian, or upon proper
instructions from the Company;
(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 Fund 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 Company.
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
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 Company issues
appropriate oral or facsimile 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 Company.
C. Custodian shall, upon receipt of proper
instructions, make federal funds available to the
Company as of specified times agreed upon from time to
time by the Company and the Custodian in the amount of
checks received in payment for shares of the Fund which
are deposited into the Fund's account.
D. If so directed by the Company, Custodian
will invest any and all available cash in overnight
cash-equivalent investments as specified by the
investment manager.
4. Segregated Accounts
Upon receipt of proper instructions, the
Custodian shall establish and maintain a segregated
account(s) for and on behalf of the Fund, into which
account(s) may be transferred cash and/or securities.
5. Transfer, Exchange, Redelivery, etc. of Securities
Custodian shall have sole power to release or
deliver any securities of the Company 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
Fund upon receipt by 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 Fund upon delivery
thereof to Custodian; or
(i) 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 therefor 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), 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 Company issues appropriate oral or
facsimile instructions to Custodian and an appropriate
officers' certificate is received by Custodian within
two business days thereafter.
6. 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 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 interest and cash dividends received,
with notice to the Company, for the account of the
Fund; (c) hold for the account of the Fund 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
Company, all necessary ownership certificates required
by the Internal Revenue Code of 1986, as amended (the
"Code") or the Income Tax Regulations (the
"Regulations") of the United States Treasury Department
(the "Treasury Department") or under the laws of any
state now or hereafter in effect, inserting the
Company'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, 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 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. All securities held by Custodian hereunder
shall be at all times identifiable in its records held
in an account or accounts of Custodian containing only
the assets of the Company.
The Company 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 Company and which may from time
to time be registered in the name of the Company.
8. 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 Fund, except in accordance with
the instructions contained in an officers' certificate.
Custodian shall deliver, or cause to be executed and
delivered, to the Company all notices, proxies and
proxy soliciting materials with respect to such
securities, such proxies to be executed by the
registered holder of such securities (if registered
otherwise than in the name of the Company), but without
indicating the manner in which such proxies are to be
voted.
9. Transfer Tax and Other Disbursements
The Company 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 exempt transfers and/or deliveries of
any such securities.
10. 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.
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 Company agrees 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 bad faith,
negligent action, negligent failure to act or willful
misconduct. 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
Custodian resulting from orders or instructions of the
Company, 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
bad faith, negligent action, negligent failure to act
or willful misconduct, any property at any time held
for the account of the Company shall be security
therefor.
Custodian agrees to indemnify and hold harmless the
Company from all charges, expenses, assessments, and
claims/liabilities (including reasonable counsel fees)
incurred or assessed against it in connection with the
performance of this Agreement, except such as may arise
from the Fund's own bad faith, negligent action,
negligent failure to act, or willful misconduct.
11. Subcustodians
Custodian is hereby authorized to engage
another bank or trust company as a subcustodian for all
or any part of the Company's assets, so long as any
such bank or trust company is itself qualified under
the 1940 Act and the rules and regulations thereunder
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 Company 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 Company requires the Custodian to engage specific
subcustodians for the safekeeping and/or clearing of
assets, the Company agrees 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 Company's assets, except as may arise from
Custodian's own bad faith, negligent action, negligent
failure to act or willful misconduct.
12. Reports by Custodian
Custodian shall furnish the Company
periodically as agreed upon with a statement
summarizing all transactions and entries for the
account of Company. Custodian shall furnish to the
Company, at the end of every month, a list of the
portfolio securities for the Fund 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 by auditors employed by, the Company.
13. Termination or Assignment
This Agreement may be terminated by the
Company, or by Custodian, on ninety (90) days notice,
given in writing and sent by registered mail to:
Firstar Trust Company
Attn.: Mutual Fund Services
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to the Company at:
Xxxx Investment Advisors
Attn.: Xxxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 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 Fund 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
Fund to the Company, but may deliver them to a bank or
trust company of its own selection that meets the
requirements of the 1940 Act as a Custodian for the
Company 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 Company 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 Company, authorized or
approved by a resolution of its Board of Directors.
14. 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 Company approves by
resolution the use of such central securities clearing
agency or securities depository.
15. Records
Custodian shall keep records relating to its
services to be performed hereunder, in the form and
manner, and for such period, as it may deem advisable
and is agreeable to the Company but not inconsistent
with the rules and regulations of appropriate
government authorities, in particular Section 31 of the
1940 Act and the rules thereunder. Custodian agrees
that all such records prepared or maintained by the
Custodian relating to the services performed by
Custodian hereunder are the property of the Company and
will be preserved, maintained, and
made available in accordance with such section and
rules of the 1940 Act and will be promptly surrendered
to the Company on and in accordance with its request.
16. Governing Law
This Agreement shall be governed by Wisconsin
law. However, nothing herein shall be construed in a
manner inconsistent with the 1940 Act or any rule or
regulation promulgated by the Securities and Exchange
Commission thereunder.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed as of the date
first above-written by their respective officers
hereunto duly authorized.
Executed in several counterparts, each of which
is an original.
Xxxx funds, Inc. FIRSTAR TRUST COMPANY
By: /s/ XxXxx X. Xxxx By: /s/ Xxx Xxxxxxxxx
-------------------------- ---------------------------
XxXxx X. Xxxx Xxx Xxxxxxxxx
Attest: /s/ Xxxxx X. Xxxx Attest: /s/ Xxxxx X. Xxxx
-------------------------- ----------------------------
Custody Services
Annual Fee Schedule - Domestic Funds
Exhibit A
Separate Series of Xxxx Funds, Inc.
Name of Series Date Added
Emerging Growth Fund October 1, 1997
Class A
Class I
Annual fee based upon market value
2 basis points per year
Minimum annual fee per fund - $3,000
Investment transactions (purchase, sale, exchange,
tender, redemption, maturity, receipt, delivery):
$12.00 per book entry security (depository or
Federal Reserve system)
$25.00 per definitive security (physical)
$25.00 per mutual fund trade
$75.00 per Euroclear
$ 8.00 per principal reduction on pass-
through certificates
$35.00 per option/futures contract
$15.00 per variation margin
$15.00 per Fed wire deposit or withdrawal
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.
Plus out-of-pocket expenses, and extraordinary expenses
based upon complexity
Fees are billed monthly, based upon market value at the
beginning of the month
