INDIVIDUAL CUSTODIAN AGREEMENT
THIS INDIVIDUAL CUSTODIAN AGREEMENT ("Agreement") dated as of the 17th day
of December , 2004 by and between the Xxxxxx Investment Trust (the "Trust"), a
statutory trust duly organized under the laws of the State of Delaware and
Wachovia Bank, N.A. (the "Bank"), a national bank.
WITNESSETH:
WHEREAS, The Nottingham Management Company (the "Administrator") serves as
administrator for the Trust;
WHEREAS, the Administrator in its capacity as administrator, and on behalf
of the Trust, appointed the Bank to act as custodian for the Trust (the
"Custodian") pursuant to a certain Master Custodian Agreement dated June 22,
2001 (the "Master Custodian Agreement") between the Administrator and the Bank,
as successor by merger with First Union National Bank;
WHEREAS, under the terms of the Master Custodian Agreement, the Trust and
the Bank must execute this Agreement to acknowledge and confirm the terms and
conditions of the Bank acting as Custodian for the Trust; and
WHEREAS, the Bank is qualified and authorized to act as Custodian for the
Trust and the separate series thereof as listed on Schedule 1, attached hereto
and made a part hereof (each a "Fund" and collectively the "Funds"), and is
willing to act in such capacity upon the terms and conditions herein set forth;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
SECTION 1. The terms as defined in this Section wherever used in this Agreement,
or in any amendment or supplement hereto, shall have meanings herein specified
unless the context otherwise requires.
CUSTODIAN: The term Custodian shall mean the Bank in its capacity as Custodian
under this Agreement.
DEPOSITORY: The term Depository means any depository service which acts as a
system for the central handling of securities where all securities of any
particular class or series of an issuer deposited within the system are treated
as fungible and may be transferred by bookkeeping entry without physical
delivery.
MASTER AGREEMENT: The term Master Agreement means that certain Master Custodian
Agreement, dated June 22, 2001, between the Administrator and the Bank, as
amended, the terms and conditions of which are hereby incorporated herein by
reference.
PROPER INSTRUCTIONS: For purposes of this Agreement, the Custodian shall be
deemed to have received Proper Instructions upon receipt of written (including
instructions received by means of computer terminals or facsimile
transmissions), telephone or telegraphic instructions from a person or persons
authorized from time to time by the Trustees of the Trust to give the particular
1
class of instructions. Telephone or telegraphic instructions shall be confirmed
in writing by such persons as said Trustees shall have from time to time
authorized to give the particular class of instructions in question. The
Custodian may act upon telephone or telegraphic instructions without awaiting
receipt of written confirmation, and shall not be liable for the Trust's failure
to confirm such instructions in writing.
SECURITIES: The term Securities means stocks, bonds, rights, warrants and all
other negotiable or non-negotiable paper issued in certificated or book-entry
form commonly known as Securities in banking custom or practice.
SHAREHOLDERS: The term Shareholders shall mean the registered owners from time
to time of the shares of the Trust ("Shares") in accordance with the registry
records maintained by the Trust or agents on its behalf.
SECTION 2. The Trust hereby acknowledges and confirms the appointment of the
Custodian as Custodian of the Trust's cash, securities and other property, to be
held by the Custodian as provided in the Master Agreement and as provided in
this Agreement. The Custodian hereby accepts such appointment subject to the
terms and conditions as stated in the Master Agreement and as hereinafter
provided. The Bank shall, upon receipt of Proper Instructions, establish and
maintain a segregated custodial account or accounts for and on behalf of the
Trust on the books and records of the Bank to hold the Securities of the Trust
deposited with, transferred to or collected by the Bank for the account of each
Fund of the Trust, and a separate cash account to which the Bank shall credit
monies received by the Bank for the account of or from each Fund of the Trust.
Such cash shall be segregated from the assets of others and shall be and remain
the sole property of the Trust.
SECTION 3. The Trust shall from time to time file with the Custodian a certified
copy of each resolution of its board of trustees ("Board of Trustees")
authorizing the person or persons to give Proper Instructions and specifying the
class of instructions that may be given by each person to the Custodian under
this Agreement, together with certified signatures of such persons authorized to
sign, which shall constitute conclusive evidence of the authority of the
officers and signatories designated therein to act, and shall be considered in
full force and effect with the Custodian fully protected in acting in reliance
thereon until it receives written notice to the contrary; provided, however,
that if the certifying officer is authorized to give Proper Instructions, the
certification shall be also signed by a second officer of the Trust. The Trust
shall also supply the funds' most recent prospectus including all amendments and
supplements thereto (the "Prospectus").
SECTION 4. The Trust will cause to be deposited with the Custodian hereunder the
applicable net asset value of Shares sold from time to time whether representing
initial issue, other stock or reinvestments of dividends and/or distributions
payable to Shareholders.
SECTION 5. The Bank, acting as agent for the Trust, is authorized, directed and
instructed subject to the further provisions of this Agreement:
(a) to hold Securities issued only in bearer form;
(b) to register in the name of the nominee of the Bank, the Bank's
Depositories, or sub-custodians, (i) Securities issued only in
registered form, and (ii) Securities issued in both bearer and
registered form, which are freely interchangeable without penalty;
(c) to deposit any securities which are eligible for deposit (i) with any
domestic or foreign Depository on such terms and conditions as such
Depository may require, including provisions for limitation or
exclusion of liability on the part of the Depository; and (ii) with
any sub-custodian which the Bank uses, including any subsidiary or
affiliate of the Bank;
2
(d) (i) to credit for the account of the Trust all proceeds received and
payable on or in respect of the assets maintained hereunder,
(ii) to debit the account of the Trust for the cost of acquiring
Securities the Bank has received for the Trust, against delivery
of such Securities to the Bank,
(iii)to present for payment Securities and other obligations(including
coupons) upon maturity, when called for redemption, and when
income payments are due, and
(iv) to make exchanges of Securities which, in the Bank's opinion, are
purely ministerial as, for example, the exchange of Securities in
temporary form for Securities in definitive form or the mandatory
exchange of certificates;
(e) to forward to the Trust, and/or any other person designated by the
Trust, all proxies and proxy materials received by the Bank in
connection with Securities held in the Trust's account, which have
been registered in the name of the Bank's nominee, or are being held
by any Depository, or sub-custodian, on behalf of the Bank;
(f) to sell any fractional interest of any Securities which the Bank has
received resulting from any stock dividend, stock split,distribution,
exchange, conversion or similar activity;
(g) to release the Trust's name, address and aggregate share position to
the issuers of any domestic Securities held in the account of the
Trust;
(h) to endorse and collect all checks, drafts or other orders for the
payment of money received by the Bank for the account of or from the
Trust;
(i) at the direction of the Trust, to enroll designated Securities
belonging to the Trust and held hereunder in a program for the
automatic reinvestment of all income and capital gains distributions
on those Securities in new shares (an "Automatic Reinvestment
Program"), or instruct any Depository holding such Securities to
enroll those Securities in an Automatic Reinvestment Program;
(j) at the direction of the Trust, to receive, deliver and transfer
Securities and make payments and collections of monies in connection
therewith, enter purchase and sale orders and perform any other acts
incidental or necessary to the performance of the above acts with
brokers, dealers or similar agents selected by the Trust, including
any broker, dealer or similar agent affiliated with the Bank, for the
account and risk of the Trust in accordance with accepted industry
practice in the relevant market, provided, however, if it is
determined that any certificated Securities transferred to a
Depository or sub-custodian, the Bank, or the Bank's nominee, the
Bank's sole responsibility for such Securities under this Agreement
shall be to safekeep the Securities in accordance with Section 11
hereof;
(k) to notify the Trust and/or any other person designated by the Trust
upon receipt of notice by the Bank of any call for redemption, tender
offer, subscription rights, merger, consolidation, reorganization or
recapitalization which (i) appears in nationally recognized
3
publications or services to which the Bank subscribes, (ii) requires
the Bank to act in response thereto, and (iii) pertain to Securities
belonging to the Trust and held hereunder which have been registered
in the name of the Bank's nominee or are being held by a Depository or
sub-custodian on behalf of the Bank. Notwithstanding anything
contained herein to the contrary, the Trust shall have the sole
responsibility for monitoring the applicable dates on which Securities
with put option features must be exercised. All solicitation fees
payable to the Bank as agent in connection herewith will be retained
by the Bank unless expressly agreed to the contrary in writing by the
Bank; and
(l) to retain Shares with respect to tender offers for under 5% of the
outstanding shares at less than 99% of current market value, without
obligation of providing notice of such offers.
Notwithstanding anything in this Section to the contrary, the Bank is authorized
to hold Securities for the Trust which have transfer limitations imposed upon
them by the Securities Act of 1993, as amended, or represent shares of mutual
funds (i) in the name of the Trust, (ii) in the name of the Bank's nominee, or
(iii) with any Depository or sub-custodian.
SECTION 6. The Custodian's compensation shall be as set forth in the Master
Agreement. It is understood and agreed that the Administrator shall be
responsible for paying the Custodian's monthly fees as outlined in Exhibit B of
the Master Agreement out of the Administrator's compensation under that certain
Fund Accounting and Compliance Administration Agreement, dated December __,
2004, between the Administrator and the Trust. Notwithstanding the foregoing,
however, the Trust shall be responsible for paying the Custodian, directly,
out-of pocket expenses, including but not limited to all costs associated with
the conversion of the Trust's securities hereunder and the transfer of
Securities and records kept in connection with this Agreement, all expenses and
taxes payable with respect to the Securities in the account of the Trust
including, without limitation, commission charges on purchases and sales and the
amount of any loss or liability for stockholders assessments or otherwise,
claimed or asserted against the Bank or against the Bank's nominee by reason of
any registration hereunder; and expenses of third parties providing services to
the Fund (other than services of third parties as are already compensated as
described in this Agreement), including services of legal counsel and
independent accountants, appraisers, and brokers.
SECTION 7. In connection with its functions under this Agreement, the Custodian
shall:
(a) render to the Trust a daily report of all monies received or paid on
behalf of the Trust;
(b) furnish to the Trust a periodic statement of the Trust's account(s)
holdings; and
(c) create, maintain and retain all records relating to its activities and
obligations under this Agreement in such manner as will meet the
obligations of the Trust with respect to said Custodian's activities
in accordance with generally accepted accounting principles. All
records maintained by the Custodian in connection with the performance
of its duties under this Agreement will remain the property of the
Trust and in the event of termination of this Agreement will be
relinquished to the Trust.
SECTION 8. Any Securities deposited with any Depository or with any
sub-custodian will be represented in accounts in the name of the Bank, which
include only property held by the Bank as Custodian for customers in which the
Bank acts in a fiduciary or agency capacity.
Should any Securities which are forwarded to the Bank by the Trust, and which
are subsequently deposited to the Bank's account in any Depository or with any
4
sub-custodian, or which the Trust may arrange to deposit in the Bank's account
in any Depository or with any sub-custodian, not be deemed acceptable for
deposit by such Depository or sub-custodian, for any reason, and as a result
thereof there is a short position in the account of the Bank with the Depository
for such Security, the Trust agrees to furnish the Bank immediately with like
Securities in acceptable form.
The Bank may refuse to accept securities and other property registered in the
Trust's name or in any other name than that of a nominee described in Section
5(b) hereof. If the Bank accepts these securities or other property, the Bank
will not be responsible for collecting income or principal or for any other
action the Bank customarily takes in connection with registered securities. The
Bank may refuse to accept any securities or other property the Bank deems
inappropriate.
SECTION 9. The Trust represents and warrants that: (i) it has the legal right,
power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Trust is a party or which
is otherwise known to the Trust; (iv) it does not require the consent or
approval of any governmental agency or instrumentality, except any such consents
and approvals which the Trust has obtained; (v) the execution and delivery of
this Agreement by the Trust will not violate any law, regulation, charter,
by-law, order of any court or governmental agency or judgment applicable to the
Trust; and (vi) all persons executing this Agreement on behalf of the Trust and
carrying out the transactions contemplated hereby on behalf of the Trust are
duly authorized to do so.
In the event any of the foregoing representations should become untrue,
incorrect or misleading, the Trust agrees to notify the Bank immediately in
writing thereof.
SECTION 10. The Bank represents and warrants that: (i) it has the legal right,
power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Bank is a party or which is
otherwise known to the Bank; (iv) it does not require the consent or approval of
any governmental agency or instrumentality, except any such consents and
approvals which the Bank has obtained; (v) the execution and delivery of this
Agreement by the Bank will not violate any law, regulation, charter, by-law,
order of any court or governmental agency or judgment applicable to the Bank;
and (vi) all persons executing this Agreement on behalf of the Bank and carrying
out the transactions contemplated hereby on behalf of the Bank are duly
authorized to do so.
In the event that any of the foregoing representations should become untrue,
incorrect or misleading, the Bank agrees to notify the Trust immediately in
writing thereof.
SECTION 11. All cash and Securities held by the Bank hereunder shall be kept
with the care exercised as to the Bank's own similar property. The Bank may at
its option insure itself against loss from any cause but shall be under no
obligation to insure for the benefit of the Trust.
SECTION 12. No liability of any kind shall be attached to or incurred by the
Custodian by reason of its custody of the Trust's assets held by it from time to
time under this Agreement, or otherwise by reason of its position as Custodian
hereunder except only for its own negligence, bad faith, or willful misconduct
in the performance of its duties as specifically set forth in the Custodian
Agreement. Without limiting the generality of the foregoing sentence, the
Custodian:
5
(a) may rely upon the advice of counsel for the Trust; and for any action
taken or suffered in good faith based upon such advice or statements
the Custodian shall not be liable to anyone;
(b) shall not be liable for anything done or suffered to be done in good
faith in accordance with any request or advice of, or based upon
information furnished by, the Trust or its authorized officers or
agents;
(c) is authorized to accept a certificate of the Secretary or Assistant
Secretary of the Trust, or Proper Instructions, to the effect that a
resolution in the form submitted has been duly adopted by its Board of
Trustees or by the Shareholders, as conclusive evidence that such
resolution has been duly adopted and is in full force and effect; and
(d) may rely and shall be protected in acting upon any signature, written
(including telegraph or other mechanical) instructions, request,
letter of transmittal, certificate, opinion of counsel, statement,
instrument, report, notice, consent, order, or other paper or document
reasonably believed by it to be genuine and to have been signed,
forwarded or presented by the purchaser, Trust or other proper party
or parties.
SECTION 13. The Trust, its successors and assigns do hereby fully indemnify and
hold harmless the Custodian its successors and assigns, from any and all loss,
liability, claims, demand, actions, suits and expenses of any nature as the same
may arise from the failure of the Trust to comply with any law, rule, regulation
or order of the United States, any state or any other jurisdiction, governmental
authority, body, or board relating to the sale, registration, qualification of
units of beneficial interest in the Trust, or from the failure of the Trust to
perform any duty or obligation under this Agreement.
Upon written request of the Custodian, the Trust shall assume the entire defense
of any claim subject to the foregoing indemnity, or the joint defense with the
Custodian of such claim, as the Custodian shall request. The indemnities and
defense provisions of this Section 13 shall indefinitely survive termination of
this Agreement.
SECTION 14. This Agreement may be amended from time to time without notice to or
approval of the Shareholders by a supplemental agreement executed by the Trust
and the Bank and amending and supplementing this Agreement in the manner
mutually agreed.
SECTION 15. Either the Trust or the Custodian may give ninety (90) days' written
notice to the other of the termination of this Agreement, such termination to
take effect at the time specified in the notice. In case such notice of
termination is given either by the Trust or by the Custodian, the Trustees of
the Trust shall, by resolution duly adopted, promptly appoint a successor
Custodian (the "Successor Custodian") which Successor Custodian shall be a bank,
trust company, or a bank and trust company in good standing, with legal capacity
to accept custody of the cash and Securities of a mutual fund. Upon receipt of
written notice from the Trust of the appointment of such Successor Custodian and
upon receipt of Proper Instructions, the Custodian shall deliver such cash and
Securities as it may then be holding hereunder directly and only to the
Successor Custodian. Unless or until a Successor Custodian has been appointed as
above provided, the Custodian then acting shall continue to act as Custodian
under this Agreement.
Every Successor Custodian appointed hereunder shall execute and deliver an
appropriate written acceptance of its appointment and shall thereupon become
vested with the rights, powers, obligations and custody of its predecessor
Custodian. The Custodian ceasing to act shall nevertheless, upon request of the
Trust and the Successor Custodian and upon payment of its charges and
disbursements, execute and instrument in form approved by its counsel
transferring to the Successor Custodian all the predecessor Custodian's rights,
duties, obligations and custody.
6
Subject to the provisions of Section 22 hereof, in case the Custodian shall
consolidate with or merge into any other corporation, the corporation remaining
after or resulting from such consolidation or merger shall ipso facto without
the execution of filing of any papers or other documents, succeed to and be
substituted for the Custodian with like effect as though originally named as
such, provided, however, in every case that said Successor corporation maintains
the qualifications set out in Section 17(f) of the Investment Company Act of
1940, as amended.
In addition to the termination rights set forth above, the Administrator has the
right to terminate this Agreement as provided in the Master Agreement.
SECTION 16. This Agreement shall take effect when assets of the Trust are first
delivered to the Custodian.
SECTION 17. This Agreement may be executed in two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 18. A Certificate of Trust is on file with the Secretary of the State of
Delaware, and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Trust as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees,
officers or Shareholders of the Trust individually, but binding only upon the
assets and property of the Trust. No Fund of the Trust shall be liable for the
obligations of any other Fund of the Trust.
SECTION 19. The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of the Trust under the Investment Company Act of 1940, as amended,
with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder, applicable Federal and state tax laws and any other law or
administrative rules or procedures which may be applicable to the Trust.
Subject to security requirements of the Custodian applicable to its own
employees having access to similar records within the Custodian, the books and
records of the Custodian pertaining to this Agreement shall be open to
inspection and audit at any reasonable times by officers of, attorneys for, and
auditors employed by, the Trust.
SECTION 20. Any sub-custodian appointed hereunder shall be qualified under
Section 17(f) of the 1940 Act and will perform its duties in accordance with the
requirements of this Agreement.
SECTION 21. Nothing contained in this Agreement is intended to or shall require
the Custodian in any capacity hereunder to perform any functions or duties on
any holiday or other day of special observance on which the Custodian is closed.
Functions or duties normally scheduled to be performed on such days shall be
performed on, and as of, the next business day the Custodian is open.
SECTION 22. This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Trust without the written consent of
the Custodian, or by the Custodian without the written consent of the Trust,
authorized or approved by a resolution of its Board of Trustees.
SECTION 23. All communications (other than Proper Instructions) which are to be
furnished hereunder to either party, or under any amendment hereto, shall be
sent by mail to the address listed below, provided that in the event that the
Bank, in its sole discretion, shall determine that an emergency exists, the Bank
may use such other means of communications as the Bank deems advisable.
7
To the Trust: Xxxxxx Investment Trust
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx
Chairman
with a copy to: The Nottingham Company
Xxxx Xxxxxx Xxx 00
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: C. Xxxxx Xxxxxx III
To the Bank: Wachovia Bank, N.A.
Institutional Custody Group-PA4942
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
SECTION 24. This Agreement, and any amendments hereto, shall be governed,
construed and interpreted in accordance with the laws of The Commonwealth of
Pennsylvania applicable to agreements made and to be performed entirely within
such Commonwealth.
SECTION 25. If Custodian in its sole discretion advances funds in any currency
hereunder or if there shall arise for whatever reason an overdraft in an Account
(including, without limitation, overdrafts incurred in connection with the
settlement of securities transactions, funds transfers or foreign exchange
transactions) or if Customer is for any other reason indebted to Custodian,
Customer agrees to repay Custodian on demand the amount of the advance,
overdraft or indebtedness plus accrued interest at a rate Custodian ordinarily
charges to its institutional custody customers in the relevant currency.
To secure repayment of Customer's and each third party's obligations to
Custodian hereunder, Customer hereby pledges and grants to Custodian a
continuing lien and security interest in, and right of set off against, all of
Customer's right, title and interest in and to (a) all Accounts in Customer's
name and the securities, money and other property now or hereafter held in such
Accounts (including proceeds thereof), (b) each Account in respect of which or
for whose benefit the advance, overdraft or indebtedness relates and the
securities, money and other property now or hereafter held in such Account
(including proceeds thereof), and (c) any other property at any time Custodian
holds for the account of Customer. In this regard, Custodian shall be entitled
to all the rights and remedies of a pledge and secured creditor under applicable
laws, rules or regulations then in effect.
8
IN WITNESS WHEREOF, the Trust and the Custodian have caused this Agreement to be
signed by their respective officers as of the day and year first above written.
XXXXXX INVESTMENT TRUST
By: /s/ Xxxxxxx X. Xxxxxx
_______________________
Name: Xxxxxxx X. Xxxxxx
Title: President
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Xxxxx
_______________________
Name:Xxxx X. Xxxxx
Title: Director VP
9
SCHEDULE 1
This Agreement shall apply to all series of the Trust.
10
