CUSTODY AGREEMENT
Exhibit 99.(g)(1)
CUSTODY AGREEMENT (this “Agreement”), dated as of May 27, 2005 by and between THE XXXXXXX FUNDS, INC. (the “Company”), an open-end management investment company organized as a corporation under the laws of the State of Maryland and registered under the 1940 Act (as hereinafter defined), acting with respect to and on behalf of each of the series of the Company that are identified on Exhibit A hereto (each such series, a “Portfolio”), and CUSTODIAL TRUST COMPANY, a bank organized and existing under the laws of the State of New Jersey (the “Custodian”).
ARTICLE I
Whenever used in this Agreement, the following terms, unless the context otherwise requires, shall mean:
1.1 “Authorized Person” means any person authorized by resolution of the Board of Directors to give Oral Instructions and Written Instructions on behalf of the Company and identified, by name or by office, in Exhibit B hereto or any person designated to do so by an investment adviser of any Portfolio who is named by the Company in Exhibit C hereto.
1.2 “Board of Directors” means the Board of Directors of the Company or, when permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 “Book-Entry System” means a book-entry system maintained by a Federal Reserve Bank for securities of the United States government or of agencies or instrumentalities thereof (including government-sponsored enterprises).
1.4 “Business Day” means any day on which banks in the State of New Jersey and New York are open for business.
1.5 “Custody Account” means, with respect to a Portfolio, the account in the name of such Portfolio, which is provided for in Section 3.2 below.
1.6 “Domestic Securities Depository” means The Depository Trust Company and any other clearing agency registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, which acts as a securities depository.
1.7 “Eligible Domestic Bank” means a bank as defined in the 1940 Act.
1.8 “Eligible Foreign Custodian” means any banking institution, trust company or other entity organized under the laws of a country other than the United States which is eligible under the 1940 Act to act as a custodian for securities and other assets of a Portfolio held outside the United States.
1.9 “Eligible Foreign Securities Depository” means an Eligible Securities Depository as defined in Rule 17f-7 under the 1940 Act.
1.10 “Foreign Assets” has the same meaning as in Rule 17f-5 under the 1940 Act.
1.11 “Foreign Custody Manager” has the same meaning as in Rule 17f-5 under the 1940 Act.
1.12 “Master Repurchase Agreement” means the Master Repurchase Agreement of even date herewith between the Company and Bear, Xxxxxxx & Co. Inc. (“Bear Xxxxxxx”) as it may from time to time be amended.
1.13 “Master Securities Loan Agreement” means the Master Securities Loan Agreement of even date herewith between the Company and Bear, Xxxxxxx Securities Corp. (“BS Securities”) as it may from time to time be amended.
1.14 “1940 Act” means the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
1.15 “Oral Instructions” means instructions orally transmitted to and accepted by Custodian which are (a) reasonably believed by Custodian to have been given by an Authorized Person, (b) recorded and kept among the records of Custodian made in the ordinary course of business, and (c) completed in accordance with Custodian’s requirements from time to time as to content of instructions and their manner and timeliness of delivery by the Company.
1.16 “Proper Instructions” means Oral Instructions or Written Instructions. Proper Instructions may be continuing Written Instructions when deemed appropriate by the Company and Custodian.
1.17 “Securities Depository” means any Domestic Securities Depository or Eligible Foreign Securities Depository.
1.18 “Shares” means, with respect to a Portfolio, those shares in a series or class of the capital stock of the Company that represent interests in such Portfolio.
1.19 “Written Instructions” means written communications received by Custodian that are (a) reasonably believed by Custodian to have been signed or sent by an Authorized Person, (b) sent
or transmitted by letter, facsimile, central processing unit connection, on-line terminal or magnetic tape, and (c) completed in accordance with Custodian’s requirements from time to time as to content of instructions and their manner and timeliness of delivery by the Company.
ARTICLE II
ARTICLE III
CUSTODY OF SECURITIES, FUNDS AND OTHER ASSETS
(b) If, with respect to any Portfolio, Custodian at any time fails to receive any of the documents referred to in Section 3.10(a) below, then, until such time as it receives such document, it shall not be obligated to receive any securities into the Custody Account of such Portfolio and shall be entitled to return to such Portfolio any securities that it is holding in such Custody Account.
by the Company. The employment of any such sub-custodian shall be at Custodian’s expense and shall not relieve Custodian of any of its obligations or liabilities under this Agreement.
(b) At any time and from time to time, Custodian in its discretion may appoint and employ in accordance with the 1940 Act, and may also cease to employ, (i) any overseas branch of any Eligible Domestic Bank, or (ii) any Eligible Foreign Custodian selected by the Foreign Custody Manager, in each case as a foreign sub-custodian for Foreign Assets of a Portfolio, provided, however, that the employment of any such overseas branch has been approved by the Company and, provided further, that, in the case of any such Eligible Foreign Custodian, the Foreign Custody Manager has approved the agreement pursuant to which Custodian employs such Eligible Foreign Custodian.
(c) Set forth on Exhibit D hereto, with respect to each Portfolio, are the foreign sub-custodians that Custodian may employ pursuant to Section 3.6(b) above. Exhibit D shall be revised from time to time as foreign sub-custodians are added or deleted.
(d) If the Company proposes to have a Portfolio make an investment which is to be held in a country in which Custodian does not have appropriate arrangements in place with either an overseas branch of an Eligible Domestic Bank or an Eligible Foreign Custodian selected by the Foreign Custody Manager, then the Company shall inform Custodian sufficiently in advance of such investment to allow Custodian to make such arrangements.
(e) Notwithstanding anything to the contrary in Section 8.1 below, Custodian shall have no greater liability to any Portfolio or the Company for the actions or omissions of any foreign sub-custodian appointed pursuant to this Agreement than any such foreign sub-custodian has to Custodian, and Custodian shall not be required to discharge any such liability which may be imposed on it unless and until such foreign sub-custodian has effectively indemnified Custodian against it or has otherwise discharged its liability to Custodian in full.
(f) Upon the request of the Foreign Custody Manager, Custodian shall furnish to the Foreign Custody Manager information concerning all foreign sub-custodians employed pursuant to this Agreement which shall be similar in kind and scope to any such information that may have been furnished to the Foreign Custody Manager in connection with the initial approval by the Foreign Custody Manager of the agreements pursuant to which Custodian employs such foreign sub-custodians or as otherwise required by the 1940 Act.
whether now or hereafter in effect. The appointment of any agent pursuant to this Section 3.7 shall not relieve Custodian of any of its obligations or liabilities under this Agreement.
(a) Prior to a deposit of securities of a Portfolio in any Domestic Securities Depository or Book-Entry System, the Company shall deliver to Custodian a resolution of the Board of Directors, certified by an officer of the Company, authorizing and instructing Custodian (and any sub-custodian appointed pursuant to Section 3.5 above) on an on-going basis to deposit in such Domestic Securities Depository or Book-Entry System all securities eligible for deposit therein and to make use of such Domestic Securities Depository or Book-Entry System to the extent possible and practical in connection with the performance of its obligations hereunder (or under the applicable sub-custody agreement in the case of such sub-custodian), including, without limitation, in connection with settlements of purchases and sales of securities, loans of securities, and deliveries and returns of collateral consisting of securities.
(b) Securities of a Portfolio kept in a Book-Entry System or Domestic Securities Depository shall be kept in an account (“Depository Account”) of Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) in such Book-Entry System or Domestic Securities Depository which includes only assets held by Custodian (or such sub-custodian) as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to securities of a Portfolio that are maintained in a Book-Entry System or Domestic Securities Depository shall at all times identify such securities as belonging to such Portfolio.
(d) If securities purchased by a Portfolio are to be held in a Book-Entry System or Domestic Securities Depository, Custodian (or any sub-custodian appointed pursuant to Section 3.5 above) shall pay for such securities upon (i) receipt of advice from the Book-Entry System or
Domestic Securities Depository that such securities have been transferred to the Depository Account, and (ii) the making of an entry on the records of Custodian (or of such sub-custodian) to reflect such payment and transfer for the account of such Portfolio. If securities sold by a Portfolio are held in a Book-Entry System or Domestic Securities Depository, Custodian (or such sub-custodian) shall transfer such securities upon (A) receipt of advice from the Book-Entry System or Domestic Securities Depository that payment for such securities has been transferred to the Depository Account, and (B) the making of an entry on the records of Custodian (or of such sub-custodian) to reflect such transfer and payment for the account of such Portfolio.
(e) Custodian shall provide the Company with copies of any report obtained by Custodian (or by any sub-custodian appointed pursuant to Section 3.5 above) from a Book-Entry System or Domestic Securities Depository in which securities of a Portfolio are kept on the internal accounting controls and procedures for safeguarding securities deposited in such Book-Entry System or Domestic Securities Depository.
(f) At its election, the Company shall be subrogated to the rights of Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) with respect to any claim against a Book-Entry System or Domestic Securities Depository or any other person for any loss or damage to a Portfolio arising from the use of such Book-Entry System or Domestic Securities Depository, if and to the extent that such Portfolio has not been made whole for any such loss or damage.
(b) In performing its obligations under Section 3.11(a) above, Custodian shall exercise reasonable care, prudence and diligence. In the exercise of such care, prudence and diligence, Custodian may rely upon assessments, determinations and monitoring made and performed with respect to an Eligible Foreign Securities Depository by Citibank, N.A. or such other operator of a global custody system as from time to time may be employed by Custodian and approved by the Company.
and, third, that after the making of such payments, such Portfolio would not be in violation of any margin or other requirements agreed upon pursuant to Section 3.19 below:
(a) For the purchase of securities for such Portfolio but only (i) in the case of securities (other than options on securities, futures contracts and options on futures contracts), against the delivery to Custodian (or any sub-custodian appointed pursuant to this Agreement) of such securities registered as provided in Section 3.21 below or in proper form for transfer or, if the purchase of such securities is effected through a Book-Entry System or Domestic Securities Depository, in accordance with the conditions set forth in Section 3.10 above, and (ii) in the case of options, futures contracts and options on futures contracts, against delivery to Custodian (or such sub-custodian) of evidence of title thereto in favor of such Portfolio, the Custodian, any such sub-custodian, or any nominee referred to in Section 3.21 below;
(b) In connection with the conversion, exchange or surrender, as set forth in Section 3.14(f) below, of securities owned by such Portfolio;
(c) For transfer in accordance with the provisions of any agreement among the Company, Custodian and a securities broker-dealer, relating to compliance with rules of The Options Clearing Corporation and of any registered national securities exchange (or of any similar organization or organizations) regarding escrow or other arrangements in connection with transactions of such Portfolio;
(d) For transfer in accordance with the provisions of any agreement among the Company, Custodian and a futures commission merchant, relating to compliance with the rules of the Commodity Futures Trading Commission and/or any contract market (or any similar organization or organizations) regarding margin or other deposits in connection with transactions of such Portfolio;
(e) For the funding of any time deposit (whether certificated or not) or other interest-bearing account with any banking institution (including Custodian), provided that Custodian shall receive and retain such certificate, advice, receipt or other evidence of deposit (if any) as such banking institution may deliver with respect to any such deposit or account;
(f) For the purchase from a banking or other financial institution of loan participations, but only if Custodian has in its possession a copy of the agreement between the Company and such banking or other financial institution with respect to the purchase of such loan participations and provided that Custodian shall receive and retain such participation certificate or other evidence of participation (if any) as such banking or other financial institution may deliver with respect to any such loan participation;
(g) For the purchase and/or sale of foreign currencies or of options to purchase and/or sell foreign currencies, for spot or future delivery, for the account of such Portfolio pursuant to contracts between the Company and any banking or other financial institution (including Custodian, any sub-custodian appointed pursuant to this Agreement and any affiliate of Custodian);
(h) For transfer to a securities broker-dealer as margin for a short sale of securities for such Portfolio, or as payment in lieu of dividends paid on securities sold short for such Portfolio;
(i) For the payment as provided in Article IV below of any dividends, capital gain distributions or other distributions declared on the Shares of such Portfolio;
(j) For the payment as provided in Article IV below of the redemption price of the Shares of such Portfolio;
(k) For the payment of any expense or liability incurred by such Portfolio, including but not limited to the following payments for the account of such Portfolio: interest, taxes, and administration, investment advisory, accounting, auditing, transfer agent, custodian, trustee and legal fees, and other operating expenses of such Portfolio; in all cases, whether or not such expenses are to be in whole or in part capitalized or treated as deferred expenses; and
(l) For any other proper purpose, but only upon receipt of Proper Instructions, specifying the amount and purpose of such payment, certifying such purpose to be a proper purpose of such Portfolio, and naming the person or persons to whom such payment is to be made.
(a) Upon the sale of securities for the account of such Portfolio but, subject to Section 3.15 below, only against receipt of payment therefor or, if such sale is effected through a Book-Entry System or Domestic Securities Depository, in accordance with the provisions of Section 3.10 above;
(b) To an offeror’s depository agent in connection with tender or other similar offers for securities of such Portfolio; provided that, in any such case, the funds or other consideration for such securities is to be delivered to Custodian;
(c) To the issuer thereof or its agent when such securities are called, redeemed or otherwise become payable, provided that in any such case the funds or other consideration for such securities is to be delivered to Custodian;
(d) To the issuer thereof or its agent for exchange for a different number of certificates or other evidence representing the same aggregate face amount or number of units; provided that, in any such case, the new securities are to be delivered to Custodian;
(e) To the securities broker through whom securities are being sold for such Portfolio, for examination in accordance with the “street delivery” custom;
(f) For exchange or conversion pursuant to any plan of merger, consolidation, recapitalization, reorganization or readjustment of the issuer of such securities, or pursuant to provisions for conversion contained in such securities, or pursuant to any deposit agreement, including surrender or receipt of underlying securities in connection with the issuance or cancellation of depository receipts; provided that, in any such case, the new securities and funds, if any, are to be delivered to Custodian;
(g) In the case of warrants, rights or similar securities, to the issuer of such warrants, rights or similar securities, or its agent, upon the exercise thereof, provided that, in any such case, the new securities and funds, if any, are to be delivered to Custodian;
(h) To the borrower thereof, or its agent, in connection with any loans of securities for such Portfolio pursuant to any securities loan agreement entered into by the Company, but only against receipt by Custodian of such collateral as is required under such securities loan agreement;
(i) To any lender, or its agent, as collateral for any borrowings from such lender by such Portfolio that require a pledge of assets of such Portfolio, but only against receipt by Custodian of the amounts borrowed;
(j) Pursuant to any authorized plan of liquidation, reorganization, merger, consolidation or recapitalization of such Portfolio or the Company;
(k) For delivery in accordance with the provisions of any agreement among the Company, Custodian and a securities broker-dealer, relating to compliance with the rules of The Options Clearing Corporation and of any registered national securities exchange (or of any similar organization or organizations) regarding escrow or other arrangements in connection with transactions of such Portfolio;
(l) For delivery in accordance with the provisions of any agreement among the Company, Custodian, and a futures commission merchant, relating to compliance with the rules of the Commodity Futures Trading Commission and/or any contract market (or any similar organization or organizations) regarding margin or other deposits in connection with transactions of such Portfolio;
(m) For delivery to a securities broker-dealer as margin for a short sale of securities for such Portfolio;
(n) To the issuer of American Depositary Receipts or International Depositary Receipts (hereinafter, collectively, “ADRs”) for such securities, or its agent, against a written receipt therefor adequately describing such securities, provided that such securities are delivered together with instructions to issue ADRs in the name of Custodian or its nominee and to deliver such ADRs to Custodian;
(o) In the case of ADRs, to the issuer thereof, or its agent, against a written receipt therefor adequately describing such ADRs, provided that such ADRs are delivered together with instructions to deliver the securities underlying such ADRs to Custodian or an agent of Custodian; or
(p) For any other proper purpose, but only upon receipt of Proper Instructions, specifying the securities or other assets to be delivered, setting forth the purpose for which such delivery is to be made, certifying such purpose to be a proper purpose of such Portfolio, and naming the person or persons to whom delivery of such securities or other assets is to be made.
(a) Subject to Section 8.4 below, receive into the Custody Account of such Portfolio any funds or other property, including payments of principal, interest and dividends, due and payable on or on account of such securities and other assets;
(b) Deliver securities of such Portfolio to the issuers of such securities or their agents for the transfer thereof into the name of such Portfolio, Custodian or any of the nominees referred to in Section 3.21 below;
(c) Endorse for collection, in the name of such Portfolio, checks, drafts and other negotiable instruments;
(d) Surrender interim receipts or securities in temporary form for securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates of ownership under the federal income tax laws of the United States, or the laws or regulations of any other taxing authority, in connection with the transfer of such securities or other assets or the receipt of income or other payments with respect thereto;
(f) Receive and hold for such Portfolio all rights and similar securities issued with respect to securities or other assets of such Portfolio;
(g) As may be required in the execution of Proper Instructions, transfer funds from the Custody Account of such Portfolio to any demand deposit account maintained by Custodian pursuant to Section 3.8 above; and
(h) In general, attend to all non-discretionary details in connection with the sale, exchange, substitution, purchase and transfer of, and other dealings in, such securities and other assets.
and interest accrued; and (iii) cancelled checks and bank records related thereto. Custodian shall keep such other books and records with respect to securities, funds and other assets of a Portfolio which are held hereunder as the Company may reasonably request.
(b) All such books and records maintained by Custodian for a Portfolio shall (i) be maintained in a form acceptable to the Company and in compliance with rules and regulations of the Securities and Exchange Commission, (ii) be the property of such Portfolio and at all times during the regular business hours of Custodian be made available upon request for inspection by duly authorized officers, employees or agents of the Company and employees or agents of the Securities and Exchange Commission, and (iii) if required to be maintained under the 1940 Act, be preserved for the periods prescribed therein.
(b) Unless otherwise instructed by the Company, Custodian shall promptly transmit to the Company all other written information received by Custodian from issuers of securities held in the Custody Account of any Portfolio. With respect to tender or exchange offers for such securities or with respect to other corporate transactions involving such securities, Custodian shall promptly transmit to the Company all written information received by Custodian from the issuers of such securities or from any party (or its agents) making any such tender or exchange offer or participating in such other corporate transaction. If the Company, with respect to such tender or exchange offer or other corporate transaction, desires to take any action that may be taken by it pursuant to the terms of such offer or other transaction, the Company shall notify Custodian (i) in the case of securities maintained outside the United States, such number of Business Days prior to
the date on which Custodian is to take such action as will allow Custodian to take such action in the relevant local market for such securities in a timely fashion, and (ii) in the case of all other securities, at least five Business Days prior to the date on which Custodian is to take such action.
ARTICLE IV
REDEMPTION OF PORTFOLIO SHARES;
DIVIDENDS AND OTHER DISTRIBUTIONS
4.1 Transfer of Funds. From such funds as may be available for the purpose in the Custody Account of a Portfolio, and upon receipt of Proper Instructions specifying that the funds are required to redeem Shares of such Portfolio or to pay dividends or other distributions to holders of Shares of such Portfolio, Custodian shall transfer each amount specified in such Proper Instructions to such account of such Portfolio or of an agent thereof (other than Custodian), at such bank, as the Company may designate therein with respect to such amount.
4.2 Sole Duty of Custodian. Custodian’s sole obligation with respect to the redemption of Shares of a Portfolio and the payment of dividends and other distributions thereon shall be its obligation set forth in Section 4.1 above, and Custodian shall not be required to make any payments to the various holders from time to time of Shares of a Portfolio nor shall Custodian be responsible for the payment or distribution by the Company, or any agent designated in Proper Instructions given pursuant to Section 4.1 above, of any amount paid by Custodian to the account of the Company or such agent in accordance with such Proper Instructions.
ARTICLE V
Upon receipt of Proper Instructions to do so, Custodian shall establish and maintain a segregated account or accounts for and on behalf of any Portfolio, into which account or accounts may be transferred funds and/or securities, including securities maintained in a Securities Depository:
(a) in accordance with the provisions of any agreement among the Company, Custodian and a securities broker-dealer (or any futures commission merchant), relating to compliance with the rules of The Options Clearing Corporation or of any registered national securities exchange (or the Commodity Futures Trading Commission or any registered contract market), or of any similar organization or organizations, regarding escrow or other arrangements in connection with transactions of such Portfolio,
(b) for purposes of segregating funds or securities in connection with securities options purchased or written by such Portfolio or in connection with financial futures contracts (or options thereon) purchased or sold by such Portfolio,
(c) which constitute collateral for loans of securities made by such Portfolio,
(d) for purposes of compliance by such Portfolio with requirements under the 1940 Act for the maintenance of segregated accounts by registered management investment companies in connection with reverse repurchase agreements, when-issued, delayed delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of Proper Instructions, specifying the purpose or purposes of such segregated account and certifying such purposes to be proper purposes of such Portfolio.
ARTICLE VI
CERTAIN REPURCHASE TRANSACTIONS
ARTICLE VII
CERTAIN SECURITIES LENDING TRANSACTIONS
required to make pursuant thereto. Custodian shall make and receive all such transfers and deliveries pursuant to, and subject to the terms and conditions of, the Master Securities Loan Agreement.
ARTICLE VIII
when due, but shall receive the proceeds of such collections as may be effected by it or its agents in the ordinary course of Custodian’s custody and safekeeping business or of the custody and safekeeping business of such agents.
ARTICLE IX
ARTICLE X
Custodian shall not be liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; strikes; epidemics; riots; power failures; computer failure and any such circumstances beyond its reasonable control as may cause interruption, loss or malfunction of utility, transportation, computer (hardware or software) or telephone communication service; accidents; labor disputes; acts of civil or military authority; or actions by any governmental authority, de jure or de facto.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
ARTICLE XII
Each Portfolio shall pay Custodian such fees and charges as are set forth in Exhibit E hereto, as such Exhibit E may from time to time be revised by Custodian upon 60 days’ prior written notice to the Company. Any annual fee or other charges payable by a Portfolio shall be paid monthly by automatic deduction from funds available therefor in the Custody Account of such Portfolio, or, if there are no such funds, upon presentation of an invoice therefor. Out-of-pocket expenses incurred by Custodian in the performance of its services hereunder for any Portfolio and all other proper charges and disbursements of the Custody Account of such Portfolio shall be charged to such Custody Account by Custodian and paid in the same manner as the annual fee and other charges referred to in this Article XII.
ARTICLE XIII
ARTICLE XIV
If to the Company:
THE XXXXXXX FUNDS, INC.
For [Xxxxxxx Growth Fund / Xxxxxxx Aggressive Growth Fund / Xxxxxxx Small Cap Growth Fund]
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Custodian:
CUSTODIAL TRUST COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party hereto shall have provided to the other by notice given in accordance with this Section 14.4. Writing shall include transmissions by or through teletype, facsimile, central processing unit connection, on-line terminal and magnetic tape.
ARTICLE XV
Either party hereto may terminate this Agreement with respect to one or more of the Portfolios by giving to the other party a notice in writing specifying the date of such termination, which shall be not less than sixty (60) days after the date of the giving of such notice. Upon the date set forth in such notice this Agreement shall terminate with respect to each Portfolio specified in such notice, and Custodian shall, upon receipt of a notice of acceptance by the successor custodian, on that date (a) deliver directly to the successor custodian or its agents all securities (other than securities held in a Book-Entry System or Securities Depository) and other assets then owned by such Portfolio and held by Custodian as custodian, and (b) transfer any securities held in a Book-Entry System or Securities Depository to an account of or for the benefit of such Portfolio, provided that such Portfolio shall have paid to Custodian all fees, expenses and other amounts to the payment or reimbursement of which it shall then be entitled.
ARTICLE XVI
16.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of law principles thereof.
17.9 Jurisdiction. Any suit, action or proceeding with respect to this Agreement may be brought in the Supreme Court of the State of New York, County of New York, or in the United States District Court for the Southern District of New York, and the parties hereto hereby submit to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding, and hereby waive for such purpose any other preferential jurisdiction by reason of their present or future domicile or otherwise. Each of the parties hereto hereby irrevocably waives its right to trial by jury in any suit, action or proceeding with respect to this Agreement.
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THE XXXXXXX FUNDS, INC. |
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By: |
/s/ Xxxx X. Xxxxxxxx |
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Name: Xxxx X. Xxxxxxxx |
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Title: Secretary |
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CUSTODIAL TRUST COMPANY |
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By: |
/s/ Xxx X. Xxxxxxxxxxx |
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Name: Xxx X. Xxxxxxxxxxx |
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Title: President |
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EXHIBIT A
PORTFOLIOS
Xxxxxxx Growth Fund
Xxxxxxx Aggressive Growth Fund
Xxxxxxx Small Cap Growth Fund
EXHIBIT B
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons authorized by the Company to administer the Custody Accounts of the Portfolios.
Name |
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Signature |
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Xxxx Xxxxxxxx |
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/s/ Xxxx Ablanese |
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Xxxxx Xxxxxxxx |
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/s/ Xxxxx Xxxxxxxx |
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Xxxx Xxxx |
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/s/ Xxxx Xxxx |
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Xxxxxxx Xxxxxx |
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/s/ Xxxxxxx Xxxxxx |
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Xxxxxxx Xxxxxxxxx |
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/s/ Xxxxxxx Xxxxxxxxx |
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Xxxxx Xxxxxxxxxxx |
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/s/ Xxxxx Xxxxxxxxxxx |
EXHIBIT C
INVESTMENT ADVISERS
ALL PORTFOLIOS
Xxxxxxx Investment Management L.L.C.
EXHIBIT D
APPROVED FOREIGN SUB-CUSTODIANS AND SECURITIES DEPOSITORIES
ALL PORTFOLIOS
Foreign Sub-custodian Country(ies) Securities Depositories
EXHIBIT E
CUSTODY FEES AND TRANSACTION CHARGES
The Company, acting for each Portfolio, shall pay Custodian the following fees for assets maintained by such Portfolio and charges for transactions by such Portfolio in the United States, all such fees and charges to be payable monthly:
(1) an annual fee equal to the greater of (i) $5,000, and (ii) the sum of the amounts obtained by applying per annum percentage rates to the value of the assets in the Custody Account for such Portfolio as follows:
- 0.03% (three basis points)to the first $50 million, plus
- 0.02% (two basis points) to the next $50 million, plus
- 0.01% (one basis point) to the next $900 million,
- to be agreed for all amounts over $1 billion,
with such fee to be payable monthly for the preceding month and with the value of such assets for this purpose being their market value on the last Business Day of the month for which such fee is charged.
(2) a transaction charge of $8 for each receipt or delivery of book-entry securities into or from the Custody Account of such Portfolio (but not for any such receipt or delivery in a repurchase transaction under the Master Repurchase Agreement representing a cash sweep investment for such Portfolio’s account);
(3) a transaction charge of $40 for each receipt or delivery of securities in physical form into or from such Portfolio’s Account;
(4) a transaction charge for each repurchase transaction in the Custody Account of such Portfolio which represents a cash sweep investment for such Portfolio’s account, computed at a rate of 0.10% (ten basis points) per annum on the amount of the purchase price paid by such Portfolio in such repurchase transaction, on the basis of a 360-day year and for the actual number of days such repurchase transaction is outstanding;
(5) a charge of $10 for each “free” transfer of funds from the Account of such Portfolio;
(6) a charge of $5 for each check issued by Custodian on behalf of such Portfolio; and
(7) a service charge for each holding of securities or other property sold by way of private placement or in such other manner as to require services by Custodian that in its sole discretion it determines to be materially in excess of those ordinarily required for the holding of publicly traded securities in the United States.
Fees and charges for holdings and transactions outside the United States, if any, shall be as separately agreed upon by the Company for each Portfolio and Custodian.