CUSTODIAN SERVICING AGREEMENT
THIS AGREEMENT made on December 1, 1998, between The Xxxxx Funds, a
Delaware business trust (hereinafter called the "Trust"), and Firstar Bank
Milwaukee, a bank chartered under the laws of the State of Wisconsin
(hereinafter called the "Custodian"),
WHEREAS, the Trust desires that its securities and cash shall be
hereafter held and administered by the Custodian pursuant to the terms of this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
made, the Trust and the 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 Trust by any two of the
President, a Vice President, the Secretary and the Treasurer of the Trust, or
any other persons duly authorized to sign by the Board of Trustees of the Trust
(the "Board").
2. Names, Titles, and Signatures of the Trust's Officers
An officer of the Trust will certify to the 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,
together with any changes which may occur from time to time.
Additional Series. The Trust is authorized to issue separate classes
of shares of beneficial interest representing interests in separate investment
portfolios. The parties intend that each portfolio established by the Trust, now
or in the future, be covered by the terms and conditions of this Agreement.
3. Receipt and Disbursement of Money
A. The Custodian shall open and maintain a separate account or
accounts in the name of the Trust, subject only to draft or order by the
Custodian acting pursuant to the terms of this Agreement. The 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 Trust. The
Custodian shall make payments of cash to, or for the account of, the Trust
from such cash only:
(a) for the purchase of securities for the portfolio of the Trust
upon the delivery of such securities to the Custodian,
registered in the name of the
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Trust or of the nominee of the Custodian referred to in
Section 7 of this Agreement or in proper form for transfer;
(b) for the purchase or redemption of shares of the common stock
of the Trust upon delivery thereof to the Custodian, or upon
proper instructions from the Trust;
(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 Trust
held by or to be delivered to the Custodian; or
(e) for other proper corporate purposes certified by resolution of
the Board.
Before making any such payment, the 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 Trust issues
appropriate oral or facsimile instructions to the Custodian and an appropriate
officers' certificate is received by the Custodian within two business days
thereafter.
B. 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 Trust.
C. The Custodian shall, upon receipt of proper instructions, make
federal funds available to the Trust as of specified times agreed upon
from time to time by the Trust and the Custodian in the amount of checks
received in payment for shares of the Trust which are deposited into the
Trust'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 any Series of the
Trust, into which account(s) may be transferred cash and/or securities.
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5. Transfer, Exchange, Redelivery, etc. of Securities
The Custodian shall have sole power to release or deliver any
securities of the Trust 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 Trust upon
receipt by the 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 Trust upon delivery thereof to the Custodian; or
(i) for other proper corporate purposes.
As to any deliveries made by the Custodian pursuant to items (a),
(b), (d), (e), (f), and (g) above, securities or cash receivable in exchange
therefore shall be deliverable to the Custodian.
Before making any such transfer, exchange or delivery, the 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 Trust issues
appropriate oral or facsimile
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instructions to the Custodian and an appropriate officers' certificate is
received by the Custodian within two business days thereafter.
6. Custodian's Acts Without Instructions
Unless and until the Custodian receives an officers' certificate to
the contrary, the Custodian shall: (a) present for payment all coupons and other
income items held by it for the account of the Trust, which call for payment
upon presentation and hold the cash received by it upon such payment for the
account of the Trust; (b) collect interest and cash dividends received, with
notice to the Trust, for the account of the Trust; (c) hold for the account of
the Trust 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 Trust, all necessary ownership certificates required by the
Internal Revenue Code of 1986, as amended (the "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 Trust'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, 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 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. 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 Trust 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 Trust and which may from
time to time be registered in the name of the Trust.
8. Voting and Other Action
Neither the Custodian nor any nominee of the Custodian shall vote
any of the securities held hereunder by or for the account of the Trust, except
in accordance with the instructions contained in an officers' certificate. The
Custodian shall deliver, or cause to be executed and delivered, to the Trust 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 Trust), but without
indicating the manner in which such proxies are to be voted.
9. Transfer Tax and Other Disbursements
The Trust 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
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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 exemptable transfers and/or deliveries of
any such securities.
10. Concerning Custodian
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, such
compensation shall be as set forth in Exhibit A attached hereto. If the Trust
elects to terminate this Agreement prior to the first anniversary of this
Agreement, the Trust agrees to reimburse the Custodian for the difference
between the standard fee schedule and the discounted fee schedule agreed to
between the parties.
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, and may rely on the genuineness of any such document which it may in good
faith believe to have been validly executed.
The Trust agrees to indemnify and hold harmless the Custodian and
its nominee from all taxes, charges, expenses, assessments, claims and
liabilities (including counsel fees) incurred or assessed against the Custodian
or by the Custodian's 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 Trust 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 Trust, 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 Trust shall be security therefore.
The Custodian agrees to indemnify and hold harmless Trust from all
charges, expenses, assessments, and claims/liabilities (including counsel fees)
incurred or assessed against the Trust in connection with the performance of
this Agreement, except such as may arise from the Trust's own negligent action,
negligent failure to act, or willful misconduct.
11. Subcustodians
The Custodian is hereby authorized to engage another bank or trust
company as a subcustodian for all or any part of the Trust'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
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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 Trust 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 Trust requires the
Custodian to engage specific subcustodians for the safekeeping and/or clearing
of assets, the Trust agrees to indemnify and hold harmless the Custodian from
all claims, expenses and liabilities incurred or assessed against it in
connection with the use of such Subcustodian in regard to the Trust's assets,
except as may arise from its own negligent action, negligent failure to act or
willful misconduct.
12. Reports by Trust's Custodian
The Custodian shall furnish the Trust periodically as agreed upon
with a statement summarizing all transactions and entries for the account of
Trust. The Custodian shall furnish to the Trust, at the end of every month, a
list of the portfolio securities showing the aggregate cost of each issue. 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 of auditors employed by, the Trust.
13. Termination or Assignment
This Agreement may be terminated by the Trust, or by the Custodian,
on ninety (90) days' notice, given in writing and sent by registered mail to the
Custodian at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Trust at 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, as the case may be. Upon any
termination of this Agreement, pending appointment of a successor to the
Custodian or a vote of the shareholders of the Trust to dissolve or to function
without a custodian of its cash, securities and other property, the Custodian
shall not deliver cash, securities or other property of the Trust to the Trust,
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
Trust to be held under terms similar to those of this Agreement, provided,
however, that the Custodian shall not be required to make any such delivery or
payment until full payment shall have been made by the Trust of all liabilities
constituting a charge on or against the properties then held by the Custodian or
on or against the Custodian, and until full payment shall have been made to the
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 the Custodian without the
consent of the Trust, authorized or approved by a resolution of its Board.
14. Deposits of Securities in Securities Depositories
No provision of this Agreement shall be deemed to prevent the use by
the Custodian of a central securities clearing agency or securities depository,
provided, however, that the Custodian and the central securities clearing agency
or securities depository meet all
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applicable federal and state laws and regulations, and the Board approves by
resolution the use of such central securities clearing agency or securities
depository.
15. Records
To the extent that the Custodian in any capacity prepares or
maintains any records required to be maintained and preserved by the Trust
pursuant to the provisions of the Investment Company Act of 1940, as amended
(the "1940 Act"), or the rules and regulations promulgated thereunder, the
Custodian agrees to make any such records available to the Trust upon request
and to preserve such records for the periods prescribed in Rule 31a-2 under the
1940 Act.
16. Year 2000 Compliance
The Custodian represents that it has examined and tested its
internal systems which have been developed to support the services outlined
herein, and as of the date of this Agreement, has no knowledge of any situation
or circumstance that will inhibit the systems' ability to perform the expected
functions, or inhibit the Custodian's ability to provide the expected services
as a result of any business interruptions or other business problems relating to
dates or days before, during, and after the year 2000. In connection with the
foregoing, the Custodian represents that it has made reasonable inquiry of its
business partners and other entities with whom it conducts business and has
carefully considered the responses of those third-parties.
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.
THE XXXXX FUNDS FIRSTAR BANK MILWAUKEE
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxx X. Xxxxxxx
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Print: Xxxxxx X. Xxxxxxxx Print: Xxx X. Xxxxxxx
Title: CFO Title: Senior Vice President
Date: October 5, 1998 Date: October 5, 1998
Attest: /s/ Xxxxx Xxxx Attest: /s/ Xxxxxxx X. Xxxxxx
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