ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of December 31, 2000 by and between PFPC Inc., a
Massachusetts corporation ("PFPC"), and The Torray Corporation, a Maryland
corporation (the "Company").
WITNESSETH:
WHEREAS, the Torray Fund (the "Fund") is a registered as an open-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Company 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 Company and any other
person duly authorized by the Company to give Oral Instructions and
Written Instructions on behalf of the Company. 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) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(f) "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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(j) "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 by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Company hereby appoints PFPC to provide administration
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.
3. Delivery of Documents. The Company has provided or, where applicable, will
provide PFPC with the following:
(a) at PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors or Trustees, approving
the appointment of PFPC or its affiliates to provide services to each
Portfolio and approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution/underwriting agreement with respect to each
class of Shares representing an interest in a Portfolio;
(e) a copy of each additional administration agreement with respect to a
Portfolio;
(f) a copy of each distribution and/or shareholder servicing plan and
agreement made in respect of the Fund or a Portfolio; and
(g) copies (certified or authenticated, where applicable) of any and all
amendments or supplements to the foregoing.
4. 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.
5. 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 Company 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. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC shall incur no liability to the Company or the
Fund in acting upon such Oral Instructions or Written Instructions
provided that PFPC's actions comply with the other provisions of this
Agreement.
6. Right to Receive Advice.
(a) Advice of the Company. 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 Company.
(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 Company 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 Company and the advice PFPC receives from counsel, PFPC may rely
upon and follow the advice of counsel; provided that PFPC shall notify
the Company in writing of its intent to follow such advice.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions it receives from
the Company 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 Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless PFPC is otherwise obligated to
perform such service or take such action under this Agreement.
7. 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 Company 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 Company,
copies of any such books and records shall be provided by PFPC to the
Company or to an Authorized Person, at the Company'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.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) 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 Company or PFPC, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of
them; (b) 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 Company or PFPC a
competitive advantage over its competitors; (c) 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 (d) anything designated as confidential. Notwithstanding
the foregoing, information shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at the time
it is obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party to
a third party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving party will
provide the other party written notice of such requirement, to the extent
such notice is permitted); (f) is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party.
9. 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 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 Company.
10. 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 Company.
11. 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 Company, 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, gross negligence or reckless disregard of
its duties or obligations under this Agreement.
12. Compensation. As compensation for services rendered by PFPC during the term
of this Agreement, the Company will pay to PFPC a fee or fees as may be
agreed to in writing by the Company and PFPC.
13. Indemnification. The Company agrees to indemnify and hold harmless PFPC and
its affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Company. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by PFPC's or its affiliates'
own willful misfeasance, bad faith, gross negligence or reckless disregard
of its duties and obligations under this Agreement.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
the Company or the Fund or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC and the
Company in a written amendment hereto. PFPC shall be obligated to
exercise care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for under
this Agreement. PFPC shall be liable only for any damages arising out
of PFPC's performance of or failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC's willful
misfeasance, bad faith, gross negligence or reckless disregard of such
duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, including without limitation (subject to Section
11), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, provided that PFPC has acted in
accordance with the standard set forth in Section 14(a) above; and
(ii) PFPC shall not be under any duty or obligation to inquire into
and shall not be liable for the validity or invalidity or authority or
lack thereof of any Oral Instruction or Written Instruction, notice or
other instrument which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable for any consequential, special
or indirect losses or damages, whether or not the likelihood of such
losses or damages was known by PFPC or its affiliates.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable, commencement of
arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
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) Calculate required tax distributions;
(vii)Prepare and coordinate filing with the SEC the Fund's annual and
semi-annual shareholder reports. Such filing via XXXXX will be
coordinated through a financial printer;
(viii) Prepare, coordinate with the Fund's counsel and file with the
SEC Post-Effective Amendments to the Fund's Registration
Statement, prepare reports to the SEC including, the preparation
and filing of (i) semi-annual reports on Form N-SAR and (ii)
Notices pursuant to Rule 24f-2;
(ix) Assist in the preparation of notices of Annual or Special
Meetings of Shareholders and Proxy materials relating to such
meetings;
(x) 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;
(xi) Monitor the Fund's assets to assure adequate fidelity bond
coverage is maintained;
(xii)Draft agendas, resolutions and materials for quarterly and
special Board meetings;
(xiii) Coordinate the preparation, assembly and mailing of Board
materials;
(xiv)Maintain the Fund's corporate calendar to assure compliance with
various filing and Board approval deadlines;
(xv) Coordinate contractual relationships and communications between
the Fund and its contractual service providers; and
(xvi) Maintain fund operating expense budget.
16. Duration and Termination. This Agreement shall continue until terminated by
the Company or by PFPC on sixty (60) days' prior written notice to the
other party. In the event the Company gives notice of termination, all
expenses associated with movement (or duplication) of records and materials
and conversion thereof to a successor accounting and administration
services agent(s) (and any other service provider(s)), and all trailing
expenses incurred by PFPC, will be borne by the Company.
17. Change of Control. Notwithstanding any other provision of this Agreement,
in the event of an agreement to enter into a transaction that would result
in a Change of Control of the Company, the Company's ability to terminate
the Agreement pursuant to Section 16 will be suspended from the time of
such agreement until two years after the Change of Control.
18. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Company, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000,
Attention: President 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.
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.
21. Delegation; Assignment. PFPC may assign this Agreement to any
majority-owned direct or indirect subsidiary of PFPC or The PNC Financial
Services Group, Inc., provided that PFPC gives the Company 30 days prior
written notice of such assignment.
22. 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.
23. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
24. Miscellaneous.
(a) Notwithstanding anything in this Agreement to the contrary, the
Company 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
Company 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, 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
delimit any of the provisions hereof or otherwise affect their
construction or effect. Notwithstanding any provision hereof, the
services of PFPC are not, nor shall they be, construed as constituting
legal advice or the provision of legal services for or on behalf of
the Company or any other person.
(d) 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.
(e) 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.
(f) The facsimile signature of any party to this Agreement shall.
constitute the valid and binding execution hereof by such party.
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 TORRAY CORPORATION
By: ________________________________
Title: _______________________________
EXHIBIT A
THIS EXHIBIT A, revised as of 2001 is Exhibit A to that certain
Administration Services Agreement dated as of December 31, 2000 between PFPC
Inc. and The Torray Corporation.
PORTFOLIOS
The Torray Fund
The Torray Institutional Fund
IN WITNESS WHEREOF, the parties hereto have caused this Revised Schedule A to be
executed by their duly authorized officers, as of the day and year first above
written.
THE TORRAY CORPORATION PFPC INC.
By:________________________________ By:_________________________________
Title: ____________________________ Title:______________________________
EXHIBIT A
THIS EXHIBIT A, dated as of June 30, 2000 is Exhibit A to that certain
Administration Services Agreement dated as of June 30, 2000 between PFPC Inc.
and The Torray Corporation.
PORTFOLIOS
The Torray Fund
December 31, 2000
THE TORRAY FUND
Re: Administration Services Fees
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to be
paid to PFPC Inc. ("PFPC") under the terms of an Administration Services
Agreement dated December 31, 2000 between The Torray Fund ("you" or the "Fund")
and PFPC (the "Agreement") for service provided on behalf of each of the Fund's
investment portfolios ("Portfolio"). Pursuant to paragraph 12 of the Agreement,
and in consideration of the services to be provided to each Portfolio, the Fund
will pay PFPC certain fees and reimburse PFPC for its out-of-pocket expenses
incurred on its behalf, as follows:
1) Regulatory Administration Services:
The following annual asset based fee will be calculated upon the
Fund's average daily net assets and payable monthly:
.00333% of the Fund's average daily net assets.
2) Out-of-Pocket Expenses:
Out-of-pocket expenses include, but are not limited to, telephone
lines, forms, envelopes, postage, overnight express charges and travel
expenses incurred for Board meeting attendance. Out-of-pocket expenses are
billed as they are incurred.
3) Miscellaneous:
Any fee or out-of-pocket expenses not paid within 30 days of the date
of the original invoice will be charged a late payment fee of 1 % per month
until payment of the fees are received by PFPC.
The fee for the period from the date hereof until the end of the year
shall be prorated according to the proportion which such period bears to
the full annual period.
If the foregoing accurately sets forth our agreement and you intend to
be legally bound thereby, please execute a copy of this letter and return
it to us.
Very truly yours,
PFPC INC.
By:________________________________
Name:______________________________
Title:_____________________________
Agreed and Accepted:
THE TORRAY FUND
By:______________________________
Name:____________________________
Title: ____________________________
