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EXHIBIT 8
CUSTODIAN AGREEMENT
THIS AGREEMENT made on this 5th day of November, 1996, between Xxxxxx
Investment Funds, Inc., a Maryland series company currently sponsoring the Bond
Fund and the Growth Stock Fund (each, a "Fund," and together, the "Funds"), and
Firstar Trust Company, a corporation organized under the laws of the State of
Wisconsin (hereinafter called "Custodian");
WHEREAS, the Funds desire that their 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
Funds 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 Funds 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 Xxxxxx Investment Funds,
Inc.
2. NAMES, TITLES, AND SIGNATURES OF THE FUNDS'S OFFICERS
An officer of the Funds 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. ADDITIONAL SERIES. Xxxxxx Investment Funds, Inc. 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 Xxxxxx Investment Funds, Inc., now or in the future, be
covered by the terms and conditions of this Agreement.
4. RECEIPT AND DISBURSEMENT OF MONEY
A. Custodian shall open and maintain a separate account or accounts in the
name 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
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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 the Funds
upon the delivery of such securities to Custodian, registered in the name
of the Funds or of the nominee of Custodian referred to in Section 8 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 Investment 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 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 Funds 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.
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5. 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.
6. 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 6 and
also, in respect of item (i), upon receipt of an officers'
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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 Funds issues
appropriate oral or facsimile instructions to Custodian and an appropriate
officers' certificate is received by Custodian within two business days
thereafter.
7. 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 held by it 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.
8. 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.
9. 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 of
such securities (if
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registered otherwise than in the name of the Funds), but without indicating the
manner in which such proxies are to be voted.
10. 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 exemptible transfers and/or deliveries of any such
securities.
11. 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 Funds agree 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 Funds
for such items.
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 therefore.
Custodian agrees to indemnify and hold harmless Funds 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 Funds' own negligent action, negligent
failure to act, or willful misconduct.
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12. 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.
13. REPORTS BY CUSTODIAN
Custodian shall furnish the Funds periodically as agreed upon with a
statement summarizing all transactions and entries for the account 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.
14. TERMINATION OR ASSIGNMENT
This Agreement may be terminated by the Funds, or by Custodian, on sixty
(60) days notice, given in writing and sent by registered mail to Custodian at
X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Funds at X.X. Xxx 0000,
Xx. Xxxxx, Xxxxxxxxx 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.
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This Agreement may not be assigned by Custodian without the consent of the
Funds, authorized or approved by a resolution of its Board of Directors.
15. 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 Funds approves by resolution the
use of such central securities clearing agency or securities depository.
16. 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, 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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
Xxxxxx Investment Funds, Inc. Firstar Trust Company
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
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Its: President Its: Vice President
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Attest: /s/ Xxxxxxx X. XxXxxxx Attest: Xxxxxx XxXxx
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Assistant Secretary
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Exhibit A
Custodian Annual Fee Schedule
Xxxxxx Funds
Annual fees based on market value of assets
2 basis points on the market value
15% discount for the first year
10% discount for the second year
Transaction charges
$12 per book entry security
$25 per physical
$75 per Euroclear
$ 8 per principal reduction on pass through certificates
$35 per option/future contract
