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EXHIBIT 99.B (8)(B)
CUSTODY ADMINISTRATION AND AGENCY AGREEMENT
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CUSTODY ADMINISTRATION AND AGENCY AGREEMENT
This AGREEMENT, dated as of the 20th day of January, 1995 made by and
between The Xxxxxxxx Family of Funds, an Ohio Business Trust (the "Trust")
operating as an open end management investment company registered under the
Investment Company Act of 1940, as amended, duly organized and existing under
the laws of the State of Ohio, and Fund/Plan Services, Inc. ("Fund/Plan"), a
corporation duly organized and existing under the laws of the State of Delaware
(collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Trust is authorized by its Declaration of Trust ("Trust
Instrument") to issue separate series of shares representing interests in
separate investment portfolios (the "Series"), which Series are identified on
Schedule "B" attached hereto and which Schedule "B" may be amended from time to
time by mutual agreement of the Trust and Fund/Plan; and
WHEREAS, the Trust desires to retain Fund/Plan to perform certain
custody administration services; and
WHEREAS, the Trust 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 Trust's behalf by United Missouri Bank, N.A. ("UMB") pursuant
to an agreement between UMB and the Trust; 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 Trust hereby appoints Fund/Plan as an agent of the
Trust, and Fund/Plan hereby accepts such appointment, for the limited purpose
of: (i) accepting invoices charged to the Trust for custody services performed
by UMB on the Trust's behalf, and (ii) remitting payment to UMB for such
services performed in amounts as set forth in Schedule "A" attached hereto.
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CUSTODY ADMINISTRATION SERVICES
Section 2. As Custody Administrator, Fund/Plan shall:
a) coordinate and process portfolio trades through client terminal links
with UMB.
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 Trust of any corporate action information, address and follow
up on any dividend or interest discrepancies
f) process the Trusts' expenses
g) interface with the accounting services provider and the transfer agent
to research and resolve custody cash problems
h) provide daily and monthly reports
TERM and FEES
Section 3.
(a) The initial term of this Agreement shall be for a period commencing
on the date of this Agreement and ending on a date two (2) years following the
Exchange Date of the reorganization described in the Agreement and Plan of
Reorganization and Liquidation between the Trust and The Advisors' Inner Circle
Fund ("Initial Term").
(b) The fee schedule set forth in Schedule "A" attached shall be fixed
for the Initial Term of this Agreement. Thereafter, the fee schedule will be
subject to annual review and adjustment.
(c) For any period after the Initial Term of this Agreement, the Trust
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 one hundred eighty (180) days after the date
of giving notice. Upon the effective termination date, the Trust 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.
(d) This Agreement also may be terminated at any time for "cause,"
after the giving of not less than sixty (60) days' notice.
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For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad faith, negligence or reckless disregard on the part of the
party to be terminated with respect to its obligations and duties set forth
herein; (b) the commencement of a judicial, regulatory or administrative
proceeding by either state or federal authorities in which criminal, illegal or
unethical behavior in the conduct of its business has been alleged against the
party to be terminated; (c) financial difficulties on the part of the party to
be terminated which is evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent, or acquiescence in, a voluntary
or involuntary case under Title 11 of the United States Code, as from time to
time is in effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors; (d) any assignment (as
that term is defined in the 0000 Xxx) of this Agreement by Fund/Plan, including
any direct or indirect transfer or hypothecation of a controlling block of
Fund/Plan's voting securities by a security holder thereof, shall permit the
Trust to terminate for cause; or (e) any circumstance which substantially
impairs the performance of the obligations and duties of the party to be
terminated, or the ability to perform those obligations and duties, as
contemplated herein.
(e) If a successor to any of Fund/Plan's duties or responsibilities
under this Agreement is designated by the Trust by written notice to Fund/Plan
in connection with the termination of this Agreement, Fund/Plan shall promptly
upon such termination and at the expense of the Trust, transfer all records and
shall cooperate in the transfer of such duties and responsibilities.
For the purpose of determining fees payable to Fund/Plan, the value of a
Series' net assets shall be computed at the times and in the manner specified in
Trust's then current Prospectus and Statement of Additional Information.
During the term of this Agreement, should the Trust 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 Trust.
GENERAL PROVISIONS
Section 4.
(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 Trust in connection with the performance of this
Agreement that results from willful misfeasance, bad faith, gross 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 Trust, shall be deemed, when rendering services to
such entity or acting on any business of the Trust, (other than services or
business in connection with Fund/Plan's duties hereunder), to be rendering such
services to or acting solely for the Trust 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 Trust
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
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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 willful misfeasance, bad faith, gross negligence or
reckless disregard of its or their duties hereunder.
(d) Fund/Plan shall give written notice to the Trust within thirty (30)
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 Trust of such written assertion or
claim shall not, however, operate in any manner whatsoever to relieve the Trust
of any liability arising under this Section or otherwise, except to the extent
that failure to give notice prejudices the Trust.
(e) For any legal proceeding giving rise to this indemnification, the
Trust 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 thirty (30) 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 Trust 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 Trust 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 Trust's express written consent which likewise shall not
be unreasonably withheld.
Section 5. This Agreement may be amended from time to time by a
supplemental agreement executed by the Trust and Fund/Plan.
Section 6. Except as otherwise provided in this Agreement, any notice or
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:
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XXX XXXXXXXX FAMILY OF FUNDS: FUND/PLAN:
The Xxxxxxxx Family of Funds Fund/Plan Services, Inc.
0000 Xxxxxxx Xxxxxx 0 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Attention: Xxxxxxx X. Xxxxx,
President President
Section 7. The Trust represents and warrants to Fund/Plan that the
execution and delivery of this Agreement by the undersigned officers of the
Trust has been duly and validly authorized by resolution of the Board of
Trustees of the Trust.
Section 8. This Agreement may be executed in two or more counterparts,
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 9. This Agreement shall extend to and shall be binding upon
the Parties and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written consent
of Fund/Plan or by Fund/Plan without the written consent of the Trust,
authorized or approved by a resolution of their respective Board of Directors or
Board of Trustees.
Section 10. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania and the venue of any action arising under this
Agreement shall be Xxxxxxxxxx County, Commonwealth of Pennsylvania.
Section 11. No provision of this Agreement may be amended or modified,
in any manner except in writing, properly authorized and executed by Fund/Plan
and the Trust.
Section 12. If any part, term or provision of this Agreement is held by
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
substantially impaired.
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Section 13. The Trust is a business trust organized under Chapter 1746,
Ohio Revised Code, and under its Trust Instrument, to which reference is hereby
made and a copy of which is on file at the office of the Secretary of State of
Ohio as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "The Xxxxxxxx Family of Funds" entered into
in the name or on behalf thereof by any of the Trustees, officers, employees or
agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, officers, employees, agents or shareholders of the
Trust personally, but bind only the assets of the Trust, as set forth in Section
1746.13(A), Ohio Revised Code, and all persons dealing with any of the Series of
the Trust must look solely to the assets of the Trust belonging to such Series
for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement,
consisting in its entirety of six typewritten pages, together with Schedules "A"
and "B" to be signed by their duly authorized officers, as of the day and year
first above written.
The Xxxxxxxx Family of Funds Fund/Plan Services, Inc.
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By: Xxxxx X. Xxxxxxxx, President By: Xxxxxxx X. Xxxxx, President
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SCHEDULE "A"
CUSTODY AGENCY AND ADMINISTRATION FEE SCHEDULE
FOR
THE XXXXXXXX FAMILY OF FUNDS
Dated: January 20, 1995
I. Annual Custody Fee Schedule Per Portfolio: Subject to a minimum monthly fee
of $300 for each Series, Custody Agency and Administration Fees shall be
calculated as follows:
A) Domestic Securities and ADRs
.00065 On the 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 On the Next $150 Million of Average Net Assets
.000125 On Average Net Assets in Excess of $250 Million
B) Custody Domestic Securities Transactions Charge
Book Entry DTC, Federal Book Entry $14.00
NOW Accounts $ 2.50
Physical/Options/Physical GNMA's/RICs $24.50
Mortgage Backed Securities - Principal Pay Down Per Pool $10.00
C) When Issued, Securities Lending, Index Futures:
Should any of these investment vehicles require a separate
segregated custody account, a fee of $250 per account per
month will apply.
II. Out-of-Pocket Expenses
The Trust will reimburse Fund/Plan Services monthly for all out-of-pocket
expenses, including telephone, postage, telecommunications, special reports,
record retention and copying and sending materials to auditors for off-site
audits.
Custody Administration and Agency Agreement between The Xxxxxxxx Family of Funds
and Fund/Plan Services, Inc.
C-1 Schedule "A"; Page 1
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III. Other Services Not Covered By This Agreement
To the extent the Trust commences using investment techniques such as Security
Lending, Short Sales, Interest Rate Swaps, Futures, Leveraging, Precious Metals
or non-U.S. denominated Futures and Options on securities and currencies,
additional fees will apply.
Activities of a non-recurring nature such as fund consolidations, mergers, or
reorganizations will be subject to negotiation. To the extent the Trust should
decide to issue multiple/separate classes of shares, additional fees will apply.
Any enhanced services or reports will be quoted upon request.
IV. Interim Fee Arrangement
Notwithstanding the foregoing, during the period from the date hereof until the
Exchange Date of the Reorganization described in the Agreement and Plan of
Reorganization and Liquidation between the Trust and The Advisors' Inner Circle
Fund, Fund/Plan will be compensated at a rate not to exceed 25% of that to which
it would otherwise be entitled on a monthly basis hereunder.
The Xxxxxxxx Family of Funds Fund/Plan Services, Inc.
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By: Xxxxx X. Xxxxxxxx, President By: Xxxxxxx X. Xxxxx, President
Custody Administration and Agency Agreement between The Xxxxxxxx Family of Funds
and Fund/Plan Services, Inc.
C-2 Schedule "A"; Page 2
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SCHEDULE "B"
Identification of Series
Dated: January 20, 1995
As Amended March 1, 1996
Below are listed the "Series" to which services under this Agreement are to be
performed as of the execution date of this Agreement:
"FAIRPORT FUNDS"
1. FAIRPORT MIDWEST GROWTH FUND
2. FAIRPORT GROWTH AND INCOME FUND
3. FAIRPORT GOVERNMENT SECURITIES FUND
This Schedule "B" may be amended from time to time by agreement of the Parties.
FAIRPORT FUNDS FUND/PLAN SERVICES, INC.
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By: Xxxxx X. Xxxxxxxx, President By: Xxxxxxx X. Xxxxx, President
Custody Administration and Agency Agreement between The Xxxxxxxx Family of Funds
and Fund/Plan Services, Inc.
C-3 Schedule "B"
