CUSTODIAN AGREEMENT
THIS AGREEMENT made on APRIL 1 , 1996, between The Xxx
Xxxxxxx Trust, a Delaware business trust organized as a series company
currently consisting of one series, the Growth Fund (hereinafter called the
("Trust"), and FIRSTAR TRUST COMPANY, a corporation organized under the laws
of the State of Wisconsin (hereinafter called "Custodian"),
WHEREAS, the Trust 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 Trust 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 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.
The words "proper instructions" shall mean those
instructions for which an officers' certificate is required but which includes
oral and facsimile instructions communicated to custodian for certain types of
transactions set forth in Sections 3A and 5 where an officers' certificate is
received within two business days of the transaction.
The word "Board" shall mean Board of Trustees of The Xxx
Xxxxxxx Trust.
2. NAMES, TITLES, AND SIGNATURES OF THE TRUST'S OFFICERS
An officer of the Trust 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
Trustees, together with any changes which may occur from time to time.
ADDITIONAL SERIES. The Holland Investment Trust is
authorized to issue separate classes of shares of beneficial interest
representing interests in separate investment portfolios or separate classes of
shares of the same series. The parties intend that each portfolio
establishedby the Trust, now or in the future, be covered by the terms and
conditions of this agreement.
3. RECEIPT AND DISBURSEMENT OF MONEY
A. Custodian shall open and maintain a separate account or
accounts in the name of the Trust, 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 Trust. 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
Custodian, registered in the name of the Trust 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 Trust upon delivery thereof to
Custodian, or upon proper instructions from the
Holland 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 Custodian: or
(e) for other proper corporate purposes certified by
resolution of the Board of Directors of the Trust.
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 Trust
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 Trust.
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C. 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 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 Trust 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
Trust upon receipt by Custodian of payment
therefore;
(b) when such securities are called, redeemed or retired
or otherwise become payable; provided that
consideration therefore is delivered to Custodian;
(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
Custodian; or
(i) for other proper corporate purposes.
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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 Trust 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 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 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,
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 Trust 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 Trust and which may from
time to time be registered in the name of the Trust.
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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 Trust,
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, tender offers, 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 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 exemptible 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. If the
Trust terminates this Agreement prior to the second anniversary of this
Agreement, the Trust agrees to reimburse Custodian for the difference between
the standard fee schedule and the discounted fee schedule agreed to between
the parties.
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.
Custodian represents that it maintains fidelity bond
coverage with limits of $40 million.
The Trust 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
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or willful misconduct. Custodian is authorized to charge any account of the
Trust for such items not excepted.
In the event of any advance of cash for any purpose made by
Custodian resulting from orders or instructions of the Trust, 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 Trust shall
be security therefore.
Custodian shall exercise reasonable care in carrying out the
provisions of this agreement.
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.
The indemnification provisions referred to above shall
survive the termination of this agreement.
11. SUBCUSTODIANS
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 than Two Million Dollars ($5,000,000) 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 the Custodian 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
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 CUSTODIAN
Custodian shall furnish the Trust periodically monthly with
a statement summarizing all transactions and entries for the account of Trust.
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 and location.
The books and records of Custodian pertaining to its actions under this
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Agreement shall be open to inspection and audit at reasonable times by
officers of, and of auditors employed by, the Trust.
13. TERMINATION, ASSIGNMENT AND SEVERABILITY
This Agreement may be terminated by the Trust, or by
Custodian, on ninety (90) days notice, given in writing and sent by registered
mail to Custodian at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the
Trust at Suite 3260, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 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 Trust 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 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 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 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 Trust, authorized or approved by a resolution of its Board of
Trustees.
If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule, or otherwise, the remainder of
this Agreement shall not be affected thereby.
14. DEPOSITS OF SECURITIES IN SECURITIES DEPOSITORIES
Pursuant to Rule 17f-4 promulgated under the Investment
Company Act of 1940, the Federal Reserve Treasury Book Entry System is hereby
designated as a permitted depository for United States Government securities
owned by the Trust and that the Custodian for the Trust is hereby authorized
to establish safekeeping accounts under the Book Entry System at Custodian and
at such other institutions properly qualified to hold securities under the
Book Entry System as they may, from time to time, deem appropriate;
Further, pursuant to Rule 17f-4 promulgated under the
Investment Company Act of 1940, the Depository Trust Company is hereby
designated as a permitted depository for securities owned by the Trust and
that the Custodian for the Trust is hereby authorized to establish safekeeping
accounts with Depository Trust Company at the Custodian and at such other
institutions properly qualified to participate in the Depository Trust Company
system as the may, from time to time, deem appropriate;
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
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Custodian and the central securities clearing agency or securities depository
meet all applicable federal and state laws and regulations, and the Board of
Trustees of the Trust 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 Trust
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 Trust upon request and to preserve such
records for the periods prescribed in Rule 31a-2 under the Investment Company
Act of 1940, as amended. Further, Custodian acknowledges that these records
are the property of the Trust and will be suspended to the Trust per request.
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
/S/ XXXXXX XXXXX By /S/ XXXXXX X. XXXX
Assistant Secretary Vice President
ATTEST: The Xxx Xxxxxxx Trust
/S/ XXXXXX X. XXXXXX By /S/ XXXXX X. XXXXXXX
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