CUSTODIAN SERVICING AGREEMENT
THIS AGREEMENT made on October 3, 1995, between Xxxxxxxx
Funds, Inc., a Maryland Corporation hereinafter called the
("Fund"), and FIRSTAR TRUST COMPANY, a corporation organized
under the laws of the State of Wisconsin (hereinafter called
"Custodian"),
WHEREAS, the Fund desires that its securities and cash 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 Fund 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
Fund by any two of the President, a Vice President, the
Secretary and the Treasurer of the Fund, or any other persons
duly authorized to sign by the Board of Directors.
The word "Board" shall mean Board of Directors of Xxxxxxxx
Funds, Inc.
2. Names, Titles, and Signatures of the Fund's Officers
An officer of the Fund 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 Fund, 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 Fund. 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 Custodian,
registered in the name of the Fund 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 Xxxxxxxx Funds, Inc.;
(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 Fund.
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 Fund 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 Fund.
C. Custodian shall, upon receipt of proper instructions,
make federal funds available to the Fund as of specified times
agreed upon from time to time by the Fund and the custodian in
the amount of checks received in payment for shares of the Fund
which are deposited into the Fund'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 the portfolio, 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 Fund 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 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), 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 Fund 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 Fund, 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 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.
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 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.
The Fund 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 Fund and which may from time to time be
registered in the name of the Fund.
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 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
Fund), but without indicating the manner in which such proxies
are to be voted.
9. Transfer Tax and Other Disbursements
The Fund 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.
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 Fund agrees to indemnify and hold harmless Custodian and
its nominee from all taxes, charges, expenses, assessments,
claims and liabilities (including 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 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 Fund, 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
Fund shall be security therefore.
Custodian agrees to indemnify and hold harmless Fund 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 Fund's own 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 Fund'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 Fund by the Subcustodian as fully as if the
Custodian was directly responsible for any such losses under the
terms of the Custodian Agreement.
Notwithstanding anything contained herein, if the Fund
requires the Custodian to engage specific Subcustodians for the
safekeeping and/or clearing of assets, the Fund 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 Fund's
assets, except as may arise from its own negligent action,
negligent failure to act or willful misconduct.
12. Reports by Custodian
Custodian shall furnish the Fund periodically as agreed upon
with a statement summarizing all transactions and entries for
the account of Fund. Custodian shall furnish to the Fund, 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 Fund.
13. Termination or Assignment
This Agreement may be terminated by the Fund, or by Custodian,
on ninety (90) days notice, given in writing and sent by
registered mail to Custodian at Firstar Trust Company, 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Fund at
______________________________________________________, 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 Fund, 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 Fund 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 Fund 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 Fund, 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 Fund approves by resolution the use of
such central securities clearing agency or securities depository.
15. Records
To the extent that Custodian in any capacity prepares or
maintains any records required to be maintained and preserved by
the Fund 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 Fund upon request and to preserve such
records for the periods prescribed in Rule 31a-2 under the
Investment Company Act of 1940, as amended.
16. Notices
Notices of any kind to be given by either party to the other
party shall be in writing and shall be duly given if mailed or
delivered as follows: Notice to FTC shall be sent to:
Firstar Trust Company
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to _________________________________ shall be sent to:
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: XXXXXXXX FUNDS, INC.
___________________________________ By _____________________________
