Exhibit (g)(4)
CUSTODIAN AGREEMENT
THIS AGREEMENT made on __________________, 2000 between XXXXXX XXXXXX
SELECT FUND, INC. (the "Company"), a diversified open-end investment company,
duly organized and existing under the laws of the State of Maryland, on behalf
of two of its series, which have been designated Xxxxxx Xxxxxx Core Equity Fund
and Xxxxxx Xxxxxx Utility Fund (collectively, the "Funds"), and FIRSTAR BANK,
N.A., (the "Custodian"), a national banking association with its principal
office and place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx,
W I T N E S S E T H:
WHEREAS, the Company, on behalf of the Funds, desires that the Funds'
securities and cash shall be hereafter held and administered by Custodian
pursuant to the terms of this Agreement, and in accordance with the FIRSTAR BANK
Standards of Service Guide in effect from time to time, a copy of which is
attached and made a part hereto;
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 Funds, or
any other persons duly authorized to sign by the Board of Directors.
The word "Board" shall mean Board of Directors of the Company.
2. NAMES, TITLES AND SIGNATURES OF THE FUNDS' OFFICERS
Those persons who are initially authorized to sign the Officers'
Certificates described in Section 1 hereof, and the names of the members of the
Board are listed in Exhibit A or such other Certificate as may be received by
Custodian from time to time, subject in each case to any limitations on the
authority of such person as set forth in Exhibit A or any such Certificate.
3. RECEIPT AND DISBURSEMENT OF MONEY
A. Custodian shall open and maintain a separate account or accounts in the
name of each of the Funds, 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 Funds. Custodian shall
make payments of cash to, or for the account of, the Funds from such cash only:
(a) for the purchase of securities for the portfolio of each of the
Funds 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 Funds upon delivery thereof to Custodian, or upon proper
instructions from the Xxxxxx Xxxxxx Core Equity Fund and the Xxxxxx
Xxxxxx Utility Fund;
(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 Funds 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 Funds.
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 Funds.
C. Custodian shall, upon receipt of proper instructions, make federal funds
available to the Funds as of specified times agreed upon from time to time by
the Funds and the Custodian in the amount of checks received in payment for
shares of the Funds which are deposited into the Funds' 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. The Custodian will be responsible for
assets of the Funds only upon actual receipt.
5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
Custodian shall have sole power to release or deliver any securities of the
Funds 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 Funds 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
Funds 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 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 Funds, which call for payment upon
presentation and hold the cash received by it upon such payment for the account
of the Funds; (b) collect interest and cash dividends received, with notice to
the Funds, for the account of the Funds; (c) hold for the account of the Funds
hereunder all stock dividends, rights and similar securities issued with respect
to any securities hereunder; and (d) execute, as agent on behalf of the Funds,
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 Funds' 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 Funds 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 Funds and which may from time to time be
registered in the name of the Funds.
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 Funds, 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 or such
securities (if registered otherwise than in the name of the Funds), but without
indicating the manner in which such proxies are to be voted.
9. TRANSFER TAX AND OTHER DISBURSEMENTS
The Funds 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 a written agreement, executed by both
parties and approved by the Board, such compensation shall be as set forth in
Exhibit B attached hereto.
The Custodian shall be entitled to charge against any money held by it for
the account of the Funds the amount of any loss, damage, liability or expense,
including counsel fees, for which it shall be entitled to reimbursement under
the provisions of this Agreement as determined by agreement of the Custodian and
the Funds or by the final order of any court or arbitrator having jurisdiction
and as to which all rights to appeal have expired.
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
and reasonably believe to have been validly executed. Custodian shall be liable
for any loss or damage, including counsel fees, resulting from its action or
omission to act, or otherwise, where any such loss or damage arises out of its
own negligence, willful misconduct or reckless disregard of its duties.
The Funds agree to indemnify and hold harmless Custodian and its nominee
from all taxes, charges, expenses, assessments, losses, 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. In the event of any advance of cash for any purpose made by
Custodian resulting from orders or instructions of the Funds, 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 Funds shall be security therefor. The
Custodian may, with respect to questions of law, apply for and obtain the advice
and opinion of counsel to the Funds at the expense of the Funds, or of its own
counsel at its own expense and shall be fully protected with respect to anything
done or omitted by it in good faith in conformity with advice or opinion of its
counsel, unless counsel to the Funds shall, within a reasonable time after
notification, have
a differing opinion of such question of law.
11. SUBCUSTODIANS
Custodian is hereby authorized to engage another bank or trust company as a
Subcustodian for all or any part of the Funds' 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 Funds 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 Funds require the
Custodian to engage specific Subcustodians for the safekeeping and/or clearing
of assets, the Funds agree 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 Funds' 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 Funds periodically as agreed upon with a
statement summarizing all transactions and entries for the accounts of Funds.
Custodian shall furnish to the Funds, 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 Funds.
13. TERMINATION OR AMENDMENT OF ASSIGNMENT
This Agreement may be terminated by the Funds, or by Custodian, on ninety
(90) days' notice, given in writing and sent by registered mail to Custodian at
X.X. Xxx 0000, Xxxx Xxxxxxxx XX-XX-00XX, Xxxxxxxxxx, Xxxx 00000-0000, or to the
Funds at Xxxxxx Xxxxxx Tower, 00 Xxxxx Xxxxxx, Xxxxxxx, 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 Funds 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 Funds to
the Funds, 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 Funds 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 Funds 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, in addition to reasonable costs
of the Custodian in connection with the termination of this Agreement.
This Agreement may not be assigned by Custodian without the consent of the
Funds, authorized or approved by a resolution of the Board.
This Agreement may be amended or modified only by a written agreement
executed by both parties and approved by the Board.
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.
15. RECORDS
To the extent that Custodian in any capacity prepares or maintains any
records required to be maintained and preserved by the Funds pursuant to the
provisions of the Investment Company Act of 1940, as amended, or the rules and
regulations promulgated thereunder, such records are the property of the Funds
and Custodian agrees to make any such records available to the Funds 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. AGREEMENT BINDING ONLY ON FUNDS' PROPERTY
FIRSTAR BANK, N.A., understands that the obligations of this Agreement are
not binding upon any shareholder of the Company personally, but are binding only
upon the Funds' property and not upon the property of other series of the
Company. FIRSTAR BANK, N.A., represents that it has notice of the provisions of
the Company's Articles of Incorporation disclaiming shareholder liability for
acts or obligations of the Company.
This Agreement shall be governed by the laws of the State of Ohio.
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 BANK, N.A.
_________________________________ BY:______________________________
Attest: XXXXXX XXXXXX SELECT FUND, INC.
_________________________________ BY:______________________________
Exhibit A - Authorized Signatures
Exhibit B - Fees
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EXHIBIT A
AUTHORIZED PERSONS SPECIMEN SIGNATURES
President:
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Vice President:
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Secretary:
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Treasurer:
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Adviser Employees:
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MFSCo.
Employees:
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EXHIBIT B
FIRSTAR BANK, N.A.
CUSTODY FEE SCHEDULE
FOR XXXXXX XXXXXX SELECT FUND, INC.
Firstar Bank, N.A., as Custodian, will receive monthly compensation for services
according to the terms of the following Schedule:
I. PORTFOLIO TRANSACTION FEES:
(a) For each Receipt and Disbursement $5.00
II. OUT-OF-POCKET EXPENSES
The only out-of-pocket expenses charged to your account will be shipping
fees or transfer fees.
III. All other fees will be charged to the ________________ portfolio account #
