EXHIBIT 8(b)
CUSTODY ADMINISTRATION AND AGENCY AGREEMENT BETWEEN REGISTRANT
AND FUND/PLAN SERVICES, INC., DATED NOVEMBER 1, 1994
CUSTODY ADMINISTRATION AND AGENCY AGREEMENT
This AGREEMENT, dated as of the 1st day of November, 1994, made by and
between Xxxxxxxx Growth Fund, Inc., (the "Fund"), a corporation operating as a
registered investment company under the Investment Company Act of 1940, as
amended, and duly organized and existing under the laws of the state of Maryland
and Fund/Plan Services, Inc. ("Fund/Plan"), a corporation duly organized and
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existing under the laws of the State of Delaware (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Fund desires to retain Fund/Plan to perform certain custody
administration services; and
WHEREAS, the Fund desires that Fund/Plan act as its agent for the specific
purpose of taking receipt of, and making payment for, custody services performed
on the Fund's behalf by The Bank of New York pursuant to an agreement between
The Bank of New York and the Fund; and
WHEREAS, Fund/Plan is willing to serve in such capacity and perform such
functions upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Parties hereto, intending to be legally bound, do hereby
agree as follows:
APPOINTMENT OF FUND/PLAN AS AGENT
Section 1. The Fund hereby grants to Fund/Plan, and Fund/Plan hereby
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accepts such grant, as an agent of the Fund for the limited purpose of: (i)
accepting invoices for custody services from The Bank of New York which invoices
reflect charges to the Fund for custody services performed by The Bank of New
York on the Fund's behalf, and (ii) remitting payment to The Bank of New York
for such services performed in amounts as set forth in Schedule "A" attached
hereto.
CUSTODY ADMINISTRATION SERVICES
Section 2. As Custody Administrator, Fund/Plan shall:
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a) coordinate and process portfolio trades through client terminal links
with The Bank of New York
b) input and verify portfolio trades
c) monitor pending and failed security trades
d) coordinate communications between brokers and banks to resolve any
operational problems
e) advise the Fund of any corporate action information, address and follow
up on any dividend or interest discrepancies
f) process the Funds' expenses
g) interface with the Accounting Services and the Transfer Agent to
research and resolve Custody cash problems
h) provide daily and monthly reports
FEES
Section 3. The Fund agrees to pay Fund/Plan compensation for its
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services and to reimburse Fund/Plan for actual expenses incurred, at the rates
and amounts as set forth in Schedule "A" attached hereto which the Fund hereby
authorizes Fund/Plan to collect by debiting the Fund's custody account for
invoices which are rendered for the applicable function. The invoices performed
will be sent to the Fund after such debiting with the indication that payment
has been made.
For the purpose of determining fees payable to Fund/Plan, the value of
Fund's net assets shall be computed at the times and in the manner specified in
Fund's then current Prospectus and Statement of Additional Information.
During the term of this Agreement, should the Fund seek services or
functions in addition to those stated, a written amendment to this Agreement
specifying the additional services and corresponding compensation shall be
executed by both Fund/Plan and the Fund.
GENERAL PROVISIONS
Section 4.
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(a) Fund/Plan, its directors, officers, employees, shareholders and
agents shall only be liable for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with the performance of this
Agreement that results from willful misfeasance, bad faith, negligence or
reckless disregard on the part of Fund/Plan in the performance of its
obligations and duties under this Agreement.
(b) Any person, even though also a director, officer, employee,
shareholder or agent of Fund/Plan, who may be or become an officer, trustee,
employee, or agent of the Fund, shall be deemed, when rendering services to such
entity or acting on any business of the
Fund, (other than services or business in connection with Fund/Plan's duties
hereunder), to be rendering such services to or acting solely for the Fund and
not as a director, officer, employee, shareholder or agent of, or one under the
control or direction of Fund/Plan even though that person is being paid salary
by Fund/Plan.
(c) Notwithstanding any other provision of this Agreement, the Fund
shall indemnify and hold harmless Fund/Plan, its directors, officers, employees,
shareholders and agents from and against any and all claims, demands, expenses
and liabilities (whether with or without basis in fact or law) of any and every
nature which Fund/Plan may sustain or incur or which may be asserted against
Fund/Plan by any person by reason of, or as a result of (i) any action taken or
omitted to be taken by Fund/Plan in good faith hereunder or (ii) any action
taken or omitted to be taken by Fund/Plan in connection with its appointment
under this agreement, which action or omission was taken in good faith in
reliance upon any law, act, regulation or interpretation of the same even though
the same may thereafter have been altered, changed, amended, or repealed.
Indemnification under this subparagraph, however, shall not apply to actions or
omissions of Fund/Plan or its directors, officers, employees, shareholders, or
agents in cases of its or their own negligence, willful misconduct, bad faith,
or reckless disregard of its or their own duties hereunder.
(d) Fund/Plan shall give written notice to the Fund within ten (10)
business days of receipt by Fund/Plan of a written assertion or claim of any
threatened or pending legal proceeding which may be subject to this
indemnification. The failure to notify the Fund of such written assertion or
claim shall not, however, operate in any manner whatsoever to relieve the Fund
of any liability arising under this Section or otherwise, except to the extent
that failure to give notice prejudices the Fund.
(e) For any legal proceeding giving rise to this indemnification, the
Fund shall be entitled to defend or prosecute any claim in the name of Fund/Plan
at its own expense and through counsel of its own choosing if it gives written
notice to Fund/Plan within ten (10) business days of receiving notice of such
claim. Notwithstanding the foregoing, Fund/Plan may participate in the
litigation at its own expense through counsel of its own choosing. In the event
the Fund chooses to defend or prosecute such claim, the parties shall cooperate
in the defense or prosecution thereof and shall furnish such records and other
information as are reasonably necessary.
(f) The Fund shall not settle any claim under (d) and (e) above
without Fund/Plan's express written consent, which consent shall not be
unreasonably withheld. Fund/Plan shall not settle any such claim under (d) and
(e) above without the Fund's express written consent which likewise shall not be
unreasonably withheld.
Section 5.
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(a) The fee schedule set forth in Schedule "A" attached shall be fixed
for (1) year after the effective date of this Agreement. At the end of the
first year, the fee schedule will be subject to annual review and adjustment.
(b) After one year, the Fund or Fund/Plan may give written notice to
the other of the termination of this Agreement, such termination to take effect
at the time specified in the notice, which date shall not be less than ninety
(90) days after the date of giving notice. Upon the effective termination date,
the Fund shall pay to Fund/Plan such compensation as may be due as of the date
of termination and shall likewise reimburse Fund/Plan for any out-of-pocket
expenses and disbursements reasonably incurred by Fund/Plan to such date.
(c) In the event that a successor to any of Fund/Plan's duties or
responsibilities under this Agreement is designated by the Fund by appropriate
and timely written notice to Fund/Plan, Fund/Plan shall, promptly upon such
termination and at the expense of the Fund, transfer all pertinent records and
shall cooperate in the transfer of such duties and responsibilities.
Section 6. This Agreement may be amended from time to time by a
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supplemental agreement executed by the Fund and Fund/Plan.
Section 7. Except as otherwise provided in this Agreement, any notice or
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other communication required by or permitted to be given in connection with
this Agreement shall be in writing, and shall be delivered in person or sent by
first class mail, postage prepaid, to the respective parties as follows:
If to the Fund: If to Fund/Plan:
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Xxxxxxxx Growth Fund, Inc. Fund/Plan Services, Inc.
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000 0 Xxxx Xxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000 Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, President Attn: Xxxxxxx X. Xxxxx, President
Section 8. The Fund represents and warrants to Fund/Plan that the
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execution and delivery of this Agreement by the undersigned officers of the Fund
has been duly and validly authorized by resolution of the Board of Directors of
the Fund.
Section 9. This Agreement may be executed in two or more counterparts,
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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 10. This Agreement shall extend to and shall be binding upon the
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Parties and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Fund without the written consent
of Fund/Plan or by Fund/Plan without the written consent of the Fund, authorized
or approved by a resolution of their Boards of Directors.
Section 11. This Agreement shall be governed by the laws of the
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Commonwealth of Pennsylvania and the venue of any action arising under this
Agreement shall be Xxxxxxxxxx County, Commonwealth of Pennsylvania.
Section 12. No provision of this Agreement may be amended or modified,
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in any manner except in writing, properly authorized and executed by Fund/Plan
and the Fund.
Section 13. If any part, term or provision of this Agreement is held by
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any court to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or provision held to
be illegal or invalid provided that the basic Agreement is not thereby
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substantially impaired.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement,
consisting in its entirety of six type written pages, together with Schedule
"A," to be signed by their duly authorized officers, as of the day and year
first above written.
Fund/Plan Services, Inc.
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By: Xxxx X. Xxxxxxx, By: Xxxxxxx X. Xxxxx
President President
SCHEDULE A
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FEE SCHEDULE
FOR
XXXXXXXX GROWTH FUND
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(All fees are quoted a term of one(1) year)
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CUSTODY OF FUND ASSETS
(THROUGH THE BANK OF NEW YORK - BONY)
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I. Annual Custody Fee Schedule per portfolio (1/12th payable monthly)
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.00065 on first $ 10 million of average net assets
.00035 on the next $ 20 million of average net assets
.00025 on the next $ 20 million of average net assets
.000175 on the next $ 50 million of average net assets
.00015 over $100 million of average net assets
II. Custody Domestic Securities Transaction Charge:
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Book Entry DTC, Federal Book Entry ......................... $14.00
Physical Securities ........................................ $24.50
OUT-OF-POCKET EXPENSES
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The Funds will reimburse Fund/Plan Services monthly for all reasonable
out-of-pocket expenses, including telephone, postage, telecommunications,
special reports and record retention. The cost of copying and sending materials
to auditors for audits will be an additional expense.
ADDITIONAL SERVICES
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To the extent the Funds commences using investment techniques such as Futures,
Security Lending, Swaps, Leveraging, Short Sales, Derivatives, non-US dollar
denominated securities and Precious Metals, additional fees may apply.
Activities of a non-recurring nature such as issuance of multiple classes of
shares, unitholder inkinds, trust consolidations, mergers or reorganizations
will be subject to negotiation. Any additional/enhanced services or reports will
be quoted upon request. Should there be subsequent regulatory
changes/requirements, additional fee revision may be necessary.
