EX-99.23(h)(2)
FORM OF ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
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THIS AGREEMENT is made as of October __, 2007 and effective retroactively
to February 2, 2007 by and between PFPC Inc., a Massachusetts corporation
("PFPC"), and THE ROXBURY FUNDS, a Delaware statutory trust (the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to provide administration and
accounting services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof, as such Exhibit A may be amended from time to
time (each a "Portfolio"), and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person
duly authorized by the Fund's Board of Directors or Trustees to give
Oral Instructions and Written Instructions on behalf of the Fund. An
Authorized Person's scope of authority may be limited by setting forth
such limitation in a written document signed by both parties hereto.
(d) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person. PFPC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "SECURITIES LAWS" means the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "SHARES" means the shares of beneficial interest of any series or
class of the Fund.
(h) "STANDARD OF CARE" means the responsibility of PFPC to fulfill its
obligations under this Agreement without willful misfeasance, bad
faith, negligence or reckless disregard of its duties.
(i) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered electronically (with respect to sub-item (ii) above) or by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration and
accounting services to each of the Portfolios, in accordance with the terms
set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services. PFPC shall be under no duty to take any action
hereunder on behalf of the Fund or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC and the Fund in a
written amendment hereto.
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3. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by the Fund or other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or this Agreement or of any
vote, resolution or proceeding of the Fund's Board of Directors or
Trustees or of the Fund's shareholders, unless and until PFPC receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) so that PFPC receives the Written Instructions
by the close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written Instructions are
not received by PFPC or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely upon
such Oral Instructions.
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5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PFPC, at the option of
PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund and the advice PFPC receives from counsel, PFPC may rely upon
and follow the advice of counsel. PFPC shall provide the Fund with
prior written notice of its intention to follow advice of counsel that
is materially inconsistent with Oral Instructions or Written
Instructions. PFPC shall further provide the Fund with a copy of such
advice of counsel.
(d) PROTECTION OF PFPC. PFPC shall be indemnified by the Fund and without
liability for any action PFPC takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions PFPC
receives from or on behalf of the Fund or from counsel and which PFPC
believes, in good faith, to be consistent with those directions or
advice and Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon PFPC (i)
to seek such directions or advice or Oral Instructions or Written
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Instructions, or (ii) to act in accordance with such directions or
advice or Oral Instructions or Written Instructions.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the Portfolios which
are in the possession or under the control of PFPC shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall
have access to such books and records at all times during PFPC's
normal business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by PFPC to the Fund or
to an Authorized Person, at the Fund's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books
of account;
(ii) records of each Portfolio's securities transactions; and
(iii) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (i) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or PFPC, their respective subsidiaries and
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affiliated companies; (ii) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund or PFPC a
competitive advantage over its competitors; (iii) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (iv) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations if
it: (i) is already known to the receiving party at the time it is obtained;
(ii) is or becomes publicly known or available through no wrongful act of
the receiving party; (iii) is rightfully received from a third party who,
to the best of the receiving party's knowledge, is not under a duty of
confidentiality; (iv) is released by the protected party to a third party
without restriction; (v) is requested or required to be disclosed by the
receiving party pursuant to a court order, subpoena, governmental or
regulatory agency request or law (provided the receiving party will provide
the other party written notice of the same, to the extent such notice is
permitted); (vi) is relevant to the defense of any claim or cause of action
asserted against the receiving party; (vii) is Fund information provided by
PFPC in connection with an independent third party compliance or other
review; (viii) is necessary or desirable for PFPC to release such
information in connection with the provision of services under this
Agreement; or (ix) has been or is independently developed or obtained by
the receiving party.
8. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other
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audit-related schedules with respect to each Portfolio. PFPC shall take all
reasonable action in the performance of its duties under this Agreement to
assure that the necessary information is made available to such accountants
for the expression of their opinion, as required by the Fund.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection with
the services provided by PFPC to the Fund.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term of this
Agreement, the Fund, on behalf of each Portfolio, will pay to PFPC a
fee or fees as may be agreed to in writing by the Fund and PFPC.
Subject to payment of filing fees to PFPC in advance, PFPC will remit
to the respective jurisdictions the requisite blue sky filing fees for
the shares of the relevant Portfolios(s) (or classes
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thereof), and any fees for qualifying or continuing the qualification
of any Portfolio(s) (or classes thereof).
(b) The undersigned hereby represents and warrants to PFPC that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFPC or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC to such adviser or sponsor or any
affiliate of the Fund relating to this Agreement have been fully
disclosed to the Board of Trustees of the Fund and that, if required
by applicable law, such Board of Trustees has approved or will approve
the terms of this Agreement, any such fees and expenses, and any such
benefits.
12. STANDARD OF CARE/LIMITATION OF LIABILITY.
(a) Subject to the terms of this Section 12, PFPC shall be liable to the
Fund (or any person or entity claiming through the Fund) for damages
only to the extent caused by PFPC's failure to meet its Standard of
Care.
(b) PFPC's liability to the Fund and any person or entity claiming through
the Fund for any loss, claim, suit, controversy, breach or damage of
any nature whatsoever (including but not limited to those arising out
of or related to this Agreement) and regardless of the form of action
or legal theory ("Loss") shall not exceed the lesser of (i) the fees
received by PFPC for services provided hereunder during the twenty
four (24) months immediately prior to the date of such Loss or (ii)
$2,000,000.
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(c) PFPC shall not be liable for damages (including without limitation
damages caused by delays, failure, errors, interruption or loss of
data) occurring directly or indirectly by reason of circumstances
beyond its reasonable control, including without limitation acts of
God; action or inaction of civil or military authority; national
emergencies; public enemy; war; terrorism; riot; fire; flood;
catastrophe; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of
nature; non-performance by a third party; failure of the mails; or
functions or malfunctions of the internet, firewalls, encryption
systems or security devices caused by any of the above.
(d) PFPC shall not be under any duty or obligation to inquire into and
shall not be liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information which
PFPC reasonably believes to be genuine. PFPC shall not be liable for
any damages that are caused by actions or omissions taken by PFPC in
accordance with Written Instructions or advice of counsel. PFPC shall
not be liable for any damages arising out of any action or omission to
act by any prior service provider of the Fund or for any failure to
discover any such error or omission, except to the extent PFPC
provided services to the Fund prior to the effective date of this
Agreement.
(e) Neither PFPC nor its affiliates shall be liable for any consequential,
incidental, exemplary, punitive, special or indirect damages, whether
or not the likelihood of such damages was known by PFPC or its
affiliates.
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(f) Neither party may assert a cause of action against the other party or
any of its affiliates for any alleged cause of action relating to this
Agreement more than the later of 12 months after such cause of action
arose or 12 months after the actual discovery of such alleged breach.
(g) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(h) This Section 12 shall survive termination of this Agreement.
13. INDEMNIFICATION.
(a) Absent PFPC's failure to meet its Standard of Care, the Fund agrees to
indemnify, defend and hold harmless PFPC and its affiliates and their
respective directors, trustees, officers, agents and employees from
all claims, suits, actions, damages, losses, liabilities, obligations,
costs and reasonable expenses (including attorneys' fees and court
costs, travel costs and other reasonable out-of-pocket costs related
to dispute resolution) arising directly or indirectly from: (i) any
action or omission to act by any prior service provider of the Fund,
except to the extent PFPC provided services to the Fund prior to the
effective date of this Agreement; and (ii) any action taken or omitted
to be taken by PFPC in connection with the provision of services to
the Fund.
(b) PFPC will indemnify, defend, and hold harmless the Fund and its
officers, trustees, and employees, from all claims, suits, actions,
damages, losses, liabilities, obligations, costs and reasonable
expenses (including attorneys' fees and court costs, travel costs and
other reasonable out-of-pocket costs related to
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dispute resolution) to the extent arising directly out of PFPC's
failure to meet its Standard of Care.
(c) LEGAL ACTION AGAINST INDEMNIFICATION PARTY.
(i) NOTICE OF THE ACTION. A party that seeks indemnification under
this Section 13 must promptly give the other party notice of
any legal action. But a delay in notice does not relieve an
indemnifying party of any liability to an indemnified party,
except to the extent the indemnifying party shows that the
delay prejudiced the defense of the action.
(ii) PARTICIPATING IN OR ASSUMING THE DEFENSE. The indemnifying
party may participate in the defense at any time or it may
assume the defense by obtaining consent of the indemnified
party, which shall not be unreasonably withheld, delayed or
conditioned, and the parties shall reasonably cooperate with
each other. After assuming the defense, the indemnifying
party:
(1) must select an attorney that is satisfactory to the other
party;
(2) shall permit the indemnified party to participate in
settlement or defense through separate counsel chosen by
the indemnified party (subject to the consent of the
indemnifying party, which consent shall not be
unreasonably withheld), provided that the fees and
expenses of such counsel shall not be borne by the
indemnifying party unless one of the following conditions
shall exist: (x) the indemnifying party shall have failed
to assume the defense of such claim or employ counsel
reasonably satisfactory to the indemnified
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party, or (y) the defendants in any such action include
both the indemnifying party and the indemnified party and
the indemnified party has reasonably concluded that there
may be legal defenses available to it which are different
from or additional to those available to the indemnifying
party, or (z) there exists or will exist a conflict of
interest between the indemnified party and the
indemnifying party for the same counsel to represent both
the indemnifying party and the indemnified party and;
(3) must not compromise or settle the action (unless such
compromise or settlement includes as an unconditional
term thereof the giving by the claimant or plaintiff to
the indemnified party of a release from all liability in
respect to such action) without the other party's consent
(but the other party must not unreasonably withhold its
consent); and
(4) is not liable for any compromise or settlement made
without its consent, so long as indemnifying party is
contesting the indemnifiable claim in good faith.
(iii) FAILING TO ASSUME THE DEFENSE. If the indemnifying party fails
to participate in or assume the defense within 30 days after
receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any
compromise or settlement made by the other party provided,
however, that the indemnified party shall notify the
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indemnifying party of any compromise or settlement of any such
indemnifiable claim.
(d) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to each
Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for a Portfolio (the "Adviser") and transmit
trades to the Fund's custodian (the "Custodian") for proper
settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability throughout the day as required by the
Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(viii) Calculate various contractual expenses (E.G., advisory and custody
fees);
(ix) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of each Portfolio's Investments;
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(xiv) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity; and
(xvii) Prepare a monthly financial statement, which will include the
following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state tax
returns;
(v) Monitor each Portfolio's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
(vi) Prepare the Fund's annual and semi-annual shareholder reports, and
prepare and coordinate the filing of Forms N-CSR, N-Q and N-PX
(with the Fund providing the voting records in the format required
by PFPC);
(vii) Prepare and coordinate the filing of annual Post-Effective
Amendments to the Fund's Registration Statement (other than adding
a new Portfolio or class); prepare and file (or coordinate the
filing of) (i) annual and semi-annual reports on Form N-SAR and
(ii) Notices pursuant to Rule 24f-2;
(viii) Administratively assist in obtaining the fidelity bond and
directors' and officers'/errors and omissions insurance policies
for the Fund in accordance with the requirements of Rule 17g-1 and
17d-1(d)(7) under the 1940 Act as such bond and policies are
approved by the Fund's Board of Directors or Trustees;
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(ix) Coordinate the filing of the Fund's fidelity bond with the SEC;
(x) Draft notices, agendas and resolutions for quarterly board meetings
and draft actions by written consent of the Board;
(xi) Coordinate the preparation, assembly and mailing of board materials
for quarterly board meetings;
(xii) Attend quarterly board meetings and draft minutes thereof;
(xiii) Maintain a regulatory calendar for the Fund listing various SEC
filing and board approval deadlines;
(xiv) Maintain the Fund's contract files;
(xv) Provide compliance policies and procedures related to services
provided by PFPC and, if mutually agreed, certain PFPC affiliates,
summary procedures thereof and an annual certification letter;
(xvi) Monitor the Fund's compliance with the amounts and conditions of
each state blue sky qualification;
(xvii) In connection with blue sky filings, the Fund hereby grants PFPC a
limited power of attorney on behalf of the Fund to sign all blue
sky filings and other related documents in order to effect such
filings. The Fund will provide PFPC a listing of all jurisdictions
in which each Portfolio (and class thereof) is lawfully available
for sale as of the date of this Agreement and in which the Fund
desires PFPC to effect a blue sky filing; and
(xviii) Provide sub-certifications, in a form to be determined by PFPC, to
the Fund's chief executive officer and chief financial officer in
support of certain matters related to the work product prepared by
PFPC and set forth in the Fund's Form N-CSR and Form N-Q filings.
All regulatory services are subject to the review and approval of Fund
counsel.
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue for a
period of three (3) years (the "Initial Term"). Upon the expiration
of the Initial Term, this Agreement will
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automatically renew for successive terms of one (1) year (the
"Renewal Terms"). Either party may terminate this Agreement
effective at the end of the Initial Term or any Renewal Term by
providing written notice to the other party of its intent not to
renew. Notice of termination must be received not less than thirty
(30) days prior to the expiration of the Initial Term or the then
current Renewal Term, as applicable.
(b) In the event of termination, all expenses associated with movement
of records and materials and conversion thereof to a successor
service provider will be borne by the Fund. This Section 16(b)
shall survive termination of this Agreement.
(c) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement
by giving thirty (30) days written notice of such termination to
the Defaulting Party. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this
Agreement or otherwise against the Defaulting Party.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as PFPC may inform the Fund in writing); (b) if to the Fund, to
Xxxxxxx Xxxxx, Roxbury Capital Management, LLC, 000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxxxx Xxxxxx, XX 00000 with a copy to Xxxxxxx X. Xxxxxx,
Esquire, Drinker Xxxxxx & Xxxxx LLP, One Xxxxx Square,
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18th and Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000-0000; or (c) if to neither
of the foregoing, at such other address as shall have been given by like
notice to the sender of any such notice or other communication by the other
party. If notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been given
three days after it has been mailed. If notice is sent by messenger, it
shall be deemed to have been given on the day it is delivered.
18. DATA REPOSITORY AND ANALYTICS SUITE. PFPC shall provide to the Fund PFPC's
data repository and analytics suite services as set forth on Exhibit B
attached hereto and made a part hereof, as such Exhibit B may be amended
from time to time. Persons who are Fund "Authorized Users" and may access
the data repository and analytics suite are set forth on Exhibit C attached
hereto and made a part hereof, as such Exhibit C may be amended from time
to time.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
20. ASSIGNMENT. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that PFPC gives the Fund thirty (30) days prior
written notice of such assignment.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
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23. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the
Fund agrees not to make any modifications to its registration
statement or adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the prior
written approval of PFPC, which approval shall not be unreasonably
withheld or delayed.
(b) Except as expressly provided in this Agreement, PFPC hereby
disclaims all representations and warranties, express or implied,
made to the Fund or any other person, including, without
limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of trade),
of any services or any goods provided incidental to services
provided under this Agreement. PFPC disclaims any warranty of title
or non-infringement except as otherwise set forth in this
Agreement.
(c) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof (including the
interim administration and accounting services agreement between
the parties), provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of
the provisions hereof or otherwise affect their construction or
effect. Notwithstanding any provision hereof, the services of
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PFPC are not, nor shall they be, construed as constituting legal
advice or the provision of legal services for or on behalf of the
Fund or any other person.
(d) The Fund will provide such information and documentation as PFPC
may reasonably request in connection with services provided by PFPC
to the Fund.
(e) This Agreement shall be deemed to be a contract made in Delaware
and governed by Delaware law, without regard to principles of
conflicts of law.
(f) 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. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
(g) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(h) The Fund and PFPC agree that the obligations of the Fund under this
Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether
past, present or future, of the Fund individually, but are binding
only upon the assets of the Fund or applicable Portfolio, as
provided in the Fund's agreement and declaration of trust. The
execution and delivery of this Agreement have been authorized by
the Trustees of the Fund, and signed by an authorized officer of
the Fund, acting as such, and neither such authorization by the
Trustees nor such execution by such officer shall be deemed to have
been made by them or any shareholder of the Fund individually or to
impose any liability on any of them or any shareholder of the Fund
personally, but shall bind only the assets and property of the Fund
or applicable Portfolio as provided in the Fund's agreement and
declaration of trust.
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(i) To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each
financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an
account with that financial institution on or after October 1,
2003. Certain of PFPC's affiliates are financial institutions, and
PFPC may, as a matter of policy, request (or may have already
requested) the Fund's name, address and taxpayer identification
number or other government-issued identification number, and, if
such party is a natural person, that party's date of birth. PFPC
may also ask (and may have already asked) for additional
identifying information, and PFPC may take steps (and may have
already taken steps) to verify the authenticity and accuracy of
these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
Title:
THE ROXBURY FUNDS
By:
Title:
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EXHIBIT A
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THIS EXHIBIT A, dated as of _________, 2007 is Exhibit A to that certain
Administration and Accounting Services Agreement dated as of ________, 2007
between PFPC Inc. and The Roxbury Funds.
PORTFOLIOS
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Roxbury Mid-Cap Fund
Roxbury Small-Cap Growth Fund
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EXHIBIT B
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DATA REPOSITORY AND ANALYTICS SUITE
1. PFPC SERVICES.
(a) Provide Internet access to PFPC's data repository and analytics suite
at XXX.XXXXXXXXXXXX.XXX or other site operated by PFPC (the "Site")
for Fund portfolio data otherwise supplied by PFPC to Fund service
providers via other electronic and manual methods. Types of
information to be provided on the Site include: (i) data relating to
portfolio securities (other than Compliance Reporting Services, as
defined below), (ii) general ledger balances and (iii) net asset
value-related data, including NAV and net asset, distribution and
yield detail (collectively, the "Accounting Services"). Types of
information to be provided on the Site also include: [data relating to
portfolio securities relative to certain provisions of the Internal
Revenue Code, securities laws or the Fund's offering documents]
(collectively, the "Compliance Reporting Services")(the Accounting
Services and the Compliance Reporting Services are together referred
to in Exhibits B and C as the "Services"). The parties hereby agree
that the Compliance Reporting Services are back-end reports only and
that PFPC (i) makes no representation or warranty about the accuracy
of the Compliance Reporting Services, or how complete such information
is, at any time and (ii) shall have no liability whatsoever with
respect to the accuracy or inaccuracy or complete or incomplete nature
of the Compliance Reporting Services or reliance thereon by any party.
(b) Supply each of the Authorized Persons specified on Exhibit C as
permissible users of PFPC's data repository and analytics suite (the
"Users") with a logon ID and Password;
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. With respect to the Accounting
Services, Users will be able to modify standard inquiries to develop
user-defined inquiry tools; however, PFPC will review computer costs
for running user-defined inquiries and may assess surcharges for those
requiring excessive hardware resources. In addition, costs for
developing custom reports or enhancements are not included in the fees
set forth below and will be billed separately to the Fund.
(d) Utilize a form of encryption that is generally available to the public
in the U.S. for standard Internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable
for this type of information and these types of users) and exercise
commercially reasonable efforts to attempt to maintain the security
and integrity of the Site; and
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(e) Monitor the telephone lines involved in providing the Services and
inform the Fund promptly of any malfunctions or service interruptions.
2. DUTIES OF THE FUND AND THE USERS.
(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify PFPC immediately
in the event that a logon ID or password is lost, stolen or if you
have reason to believe that the logon ID and password are being used
by an unauthorized person.
3. STANDARD OF CARE; LIMITATIONS OF LIABILITY.
(a) The Fund acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC's
provision of Services is dependent upon the proper functioning of the
Internet and services provided by telecommunications carriers,
firewall providers, encryption system developers and others. The Fund
agrees that PFPC shall not be liable in any respect for the actions or
omissions of any third party wrongdoers (i.e., hackers not employed by
such party or its affiliates) or of any third parties involved in the
Services and shall not be liable in any respect for the selection of
any such third party, unless that selection constitutes a breach of
PFPC's Standard of Care as defined in the Agreement.
(b) Without limiting the generality of the foregoing or any other
provisions of this Exhibit or the Agreement, PFPC shall not be liable
for delays or failures to perform any of the Services or errors or
loss of data occurring by reason of circumstances beyond such party's
control, including acts of civil or military authority, national
emergencies, labor difficulties, fire, flood, catastrophe, acts of
God, insurrections, war, riots or failure of the mails,
transportation, communication or power supply, functions or
malfunctions of the Internet or telecommunications services,
firewalls, encryption systems or security devices caused by any of the
above, or laws or regulations imposed after the date of this Exhibit.
4. DURATION, TERMINATION AND CHANGES TO TERMS.
(a) PFPC shall have the right at any time to provide notice of changes to
the terms and fees described in this Agreement. Such changes will
become effective and bind the parties hereto after sixty (60) days
from the date PFPC notifies the Fund of such changes, unless the Fund
terminates this Agreement pursuant hereto or the parties agree
otherwise at such time.
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(b) Either party may terminate this Exhibit upon sixty (60) days' prior
written notice to the other. Any outstanding fees must be paid before
this Agreement terminates, unless PFPC waives such requirement.
5. MISCELLANEOUS. In the event of a conflict between specific terms of this
Exhibit and the balance of the Agreement, this Exhibit shall control as to
the Services.
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EXHIBIT C
---------
DATA REPOSITORY AND ANALYTICS SUITE AUTHORIZED PERSONS
The following individuals shall be Fund Authorized Persons to access PFPC's data
repository and analytics suite:
NAME COMPANY OR FIRM SIGNATURE
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