SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 30th day of November, 1999 (the "Effective
Date") between THE TORRAY FUND (the "Fund"), a Massachusetts Business Trust
having its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx XX 00000 and FIRST DATA INVESTOR SERVICES GROUP, INC. ("Investor
Services Group"), a Massachusetts corporation with principal offices at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate series, with
each such series representing interests in a separate portfolio of securities or
other assets.
WHEREAS, the Fund initially intends to offer Shares in those Portfolios
identified in the attached Schedule A, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to this
Agreement in accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint Investor
Services Group as its custody administrator, transfer agent, dividend disbursing
agent and agent in connection with certain other activities and Investor
Services Group desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and Investor Services Group agree as follows:
ARTICLE 1 Definitions
1.1. Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any authorized
officer of the Fund; or (ii) any person, whether or not such person is an
officer or employee of the Fund, duly authorized to give Oral Instructions
or Written Instructions on behalf of the Fund as indicated in writing to
Investor Services Group from time to time.
(c) "Board Members" shall mean the Directors or Trustees of the
governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or Board of
Trustees of the Fund, as the case may be.
(e) "Commencement Date" shall mean the date on which Investor Services
Group commences providing services to the Fund pursuant to this Agreement,
(f) "Commission" shall mean the Securities and Exchange Commission.
(g) "Custodian" refers to any custodian or subcustodian of securities
and other property which the Fund may from time to time deposit, or cause
to be deposited or held under the name or account of such a custodian
pursuant to a Custodian Agreement.
(h) "1934 Act" shall mean the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
(i) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
(j) "Oral instructions" shall mean instructions, other than Written
Instructions, actually received by Investor Services Group from a person
reasonably believed by Investor Services Group to be an Authorized Person;
(k) "Portfolio" shall mean each separate series of shares offered by
the Fund representing interests in a separate portfolio of securities and
other assets;
(l) "Prospectus" shall mean the most recently dated Fund Prospectus
and Statement of Additional Information, including any supplements thereto
if any, which has become effective under the Securities Act of 1933 and the
1940 Act.
(m) "Shares" refers collectively to such shares of capital stock or
beneficial interest, as the case may be, or class thereof, of each
respective Portfolio of the Fund as may be issued from time to time.
(n) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(o) "Written Instructions" shall mean a written communication signed
by a person reasonably believed by Investor Services Group to be an
Authorized Person and actually received by Investor Services Group. Written
Instructions shall include manually executed originals and authorized
electronic transmissions, including telefacsimile of a manually executed
original or other process.
ARTICLE 2 Appointment of Investor Services Group.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes
Investor Services Group as its sole and exclusive transfer agent and dividend
disbursing agent for Shares of each respective Portfolio of the Fund and as
custody administrator, shareholder servicing agent for the Fund and Investor
Services Group hereby accepts such appointments and agrees to perform the duties
hereinafter set forth. This Agreement shall be effective as of the Effective
Date.
ARTICLE 3 Duties of Investor Services Group.
3.1. Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance, transfer
and redemption or repurchase (including coordination with the Custodian) of
Shares of each Portfolio, as more fully described in the written schedule
of Duties of Investor Services Group annexed hereto as Schedule B and
incorporated herein, and in accordance with the terms of the Prospectus of
the Fund on behalf of the applicable Portfolio, applicable law and the
procedures established from time to time between Investor Services Group
and the Fund.
(b) Recording the issuance of Shares and maintaining pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of Shares of each
Portfolio which are authorized, based upon data provided to it by the Fund,
and issued and outstanding. Investor Services Group shall provide the Fund
on a regular basis with the total number of Shares of each Portfolio which
are authorized and issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to the issue or sale of
such Shares, which functions shall be the sole responsibility of the Fund.
(c) In addition to providing the foregoing services, the Fund hereby
engages Investor Services Group as its exclusive service provider with
respect to the Print/Mail Services as set forth in Schedule C for the fees
also identified in Schedule C. Investor Services Group agrees to perform
the services and its obligations subject to the terms and conditions of
this Agreement.
(d) Notwithstanding any of the foregoing provisions of this Agreement,
Investor Services Group shall be under no duty or obligation to inquire
into, and shall not be liable for; (i) the legality of the issuance or sale
of any Shares or the sufficiency of the amount to be received therefor;
(ii) the legality of the redemption of any Shares, or the propriety of the
amount to be paid therefor, (iii) the legality of the declaration of any
dividend by the Board of Directors, or the legality of the issuance of any
Shares in payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
3.2. In addition, the Fund shall (i) identify to Investor Services Group in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of Investor Services Group for the
Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3. In performing its duties under this Agreement, Investor Services
Group: (a) will act in accordance with the Articles of Incorporation, By-Laws,
Prospectuses and with the Oral Instructions and Written Instructions of the Fund
and will conform to and comply with the requirements of the 1940 Act and all
other applicable federal or state laws and regulations; and (b) will consult
with legal counsel to the Fund, as necessary and appropriate. Furthermore,
Investor Services Group shall not have or be required to have any authority to
supervise the investment or reinvestment of the securities or other properties
which comprise the assets of the Fund or any of its Portfolios and shall not
provide any investment advisory services to the Fund or any of its Portfolios.
3.4. In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the Fund
and Investor Services Group.
ARTICLE 4 Recordkeeping and Other Information.
4.1. Investor Services Group shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in Schedule B in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Where applicable, such records shall
be maintained by Investor Services Group for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2. To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Fund and will be preserved, maintained
and made available in accordance with such section, and will be surrendered
promptly to the Fund on and in accordance with the Fund's request.
4.3. In case of any requests or demands for the inspection of Shareholder
records of the Fund, Investor Services Group will endeavor to notify the Fund of
such request and secure Written Instructions as to the handling of such request.
Investor Services Group reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to comply with such request.
ARTICLE 5 Fund Instructions.
5.1. Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund. Investor Services Group will also have no liability when
processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the officers of the Fund and the proper
countersignature of Investor Services Group.
5.2. At any time, Investor Services Group may request Written Instructions
from
the Fund and may seek advice from legal counsel for the Fund, or its own legal
counsel, with respect to any matter arising in connection with this Agreement,
and it shall not be liable for any action taken or not taken or suffered by it
in good faith and without negligence in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Fund or for
Investor Services Group. Written Instructions requested by Investor Services
Group will be provided by the Fund within a reasonable period of time.
5.3. Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is an
Authorized Person. The Fund agrees that all Oral Instructions shall be followed
within one business day by confirming Written Instructions, and that the Fund's
failure to so confirm shall not impair in any respect Investor Services Group's
right to rely on Oral Instructions.
ARTICLE 6 Compensation.
6.1. The Fund on behalf of each of the Portfolios will compensate Investor
Services Group for the performance of its obligations hereunder in accordance
with the fees and other charges set forth in the written Fee Schedule annexed
hereto as Schedule C and incorporated herein.
6.2. In addition to those fees set forth in Section 6.1 above, the Fund on
behalf of each of the Portfolios agrees to pay, and will be billed separately
for, out-of-pocket expenses incurred by Investor Services Group in the
performance of its duties hereunder, Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written schedule of
out-of-pocket charges annexed hereto as Schedule D and incorporated herein.
Schedule D may be modified by written agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those out-of-pocket expenses
reasonably incurred by Investor Services Group in the performance of its
obligations hereunder.
6.3. The Fund on behalf of each of the Portfolios hereby authorizes
Investor Services Group to collect its fees, other charges and related
out-of-pocket expenses by debiting the Fund's or Portfolio's custody account for
invoices which are rendered for the services performed for the applicable
function. Invoices for the services performed will be sent to the Fund after
such debiting with an indication that payment has been made.
6.4. Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule C, a revised Fee Schedule executed and dated by the
parties hereto.
6.5. The Fund acknowledges that the fees and charges that Investor Services
Group charges the Fund under this Agreement reflect the allocation of risk
between the parties, including the disclaimer of warranties in Section 9.3 and
the limitations on liability and exclusion of remedies in Section 11.2 and
Article 12. Modifying the allocation of risk from what is stated here would
affect the fees that Investor Services Group charges, and in consideration of
those fees, the Fund agrees to the stated allocation of risk.
6.6. Investor Services Group will from time to time employ or associate
with itself such person or persons as investor Services Group may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
Investor Services Group and the Fund. The compensation of such person or persons
shall be paid by Investor Services Group and no obligation shall be incurred on
behalf of the Fund in such respect.
6.7. Investor Services Group shall not be required to pay any of the
following
expenses incurred by the Fund: membership dues in the Investment Company
Institute or any similar organization; investment advisory expenses; costs of
printing and mailing stock certificates, prospectuses, reports and notices;
interest on borrowed money; brokerage commissions; stock exchange listing fees;
taxes and fees payable to Federal, state and other governmental agencies; fees
of Board Members of the Fund who are not affiliated with Investor Services
Group; outside auditing expenses; outside legal expenses; Blue Sky registration
or filing fees; or other expenses not specified in this Section 6.7 which may be
properly payable by the Fund.
ARTICLE 7 Documents.
In connection with the appointment of Investor Services Group, the Fund
shall, on or before the date this Agreement goes into effect, but in any case
within a reasonable period of time for Investor Services Group to prepare to
perform its duties hereunder, deliver or caused to be delivered to Investor
Services Group the documents set forth in the written schedule of Fund Documents
annexed hereto as Schedule E.
ARTICLE 8 Investor Services Group System.
8.1. Investor Services Group shall retain title to and ownership of any and
all 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 Investor Services Group in connection
with the services provided by Investor Services Group to the Fund herein (the
"Investor Services Group System").
8.2. Investor Services Group hereby grants to the Fund a limited license to
the Investor Services Group System for the sole and limited purpose of having
Investor Services Group provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and such
license shall immediately terminate with the termination of this Agreement.
8.3. In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the Investor Services Group System for either account inquiry or to
transmit transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access capability shall be
limited to direct entry to the Investor Services Group System by means of
on-line mainframe terminal entry or PC emulation of such mainframe terminal
entry and any other nonconforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
ARTICLE 9 Representations and Warranties.
9.1. Investor Services Group represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory agency as a
transfer agent and such registration will remain in effect for the duration
of this Agreement;
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement; and
(f) all equipment and software provided or used by Investor Services
Group or any of its subsidiaries or divisions in connection with rendering
services to the Company under the terms of this Agreement, include or shall
include design and performance capabilities so that prior to, during, and
after December 31, 1999 (the "Millennium Date Change") they will not
malfunction, produce invalid or incorrect results, cause an interruption in
or diminish the quality of the services provided to the Company, or
abnormally cease to function due to the Millennium Date Change. Such design
and performance capabilities shall include without limitation the ability
to recognize and process the Year 2000 and thereafter and to manage and
manipulate data involving dates, including without limitation, (i) single
century and multi-century formulas and date values without resulting in the
generation of incorrect values involving such dates or causing an abnormal
ending, (ii) date data interfaces with functionalities and data fields that
indicate the century, and (iii) date-related functions that indicate the
century.
9.2. The Fund represents and warrants to Investor Services Group that:
(a) it is a business trust duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation anti By-Laws to enter into this Agreement;
(c) all proceedings required by said Articles of Incorporation,
By-Laws and applicable laws have been taken to authorize it to enter into
this Agreement;
(d) a registration statement under the Securities Act of 1933, as
amended, and the 1940 Act on behalf of each of the Portfolios is currently
effective and will remain effective, and all appropriate state securities
law filings have been made and will continue to be made, with respect to
all Shares of the Fund being offered for sale;
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with the
terms of the Fund's Articles of Incorporation and its Prospectus with
respect to each Portfolio, such Shares shall be validly issued, fully paid
and non-assessable; and
(f) as of the date hereof, each Portfolio is duly registered and
lawfully eligible for sale in each jurisdiction indicated for such
Portfolio on the list furnished to Investor Services Group pursuant to
Article 7 of this Agreement and that it will notify Investor Services Group
immediately of any changes to the aforementioned list.
9.3. THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, INVESTOR SERVICES GROUP DISCLAIMS ALL OTHER REPRESENTATIONS OR
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. INVESTOR SERVICES
GROUP DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE
SET FORTH IN THIS AGREEMENT.
ARTICLE 10 Indemnification.
10.1. Investor Services Group shall not be responsible for and the Fund on
behalf of each Portfolio shall indemnify and hold Investor Services Group
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against Investor Services Group or for
which Investor Services Group may be held to be liable (a "Claim") arising out
of or attributable to any of the following:
(a) any actions of Investor Services Group required to be taken
pursuant to this Agreement unless such Claim resulted from a negligent act
or omission to act or bad faith by Investor Services Group in the
performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or reasonable
use of information, data, records and documents (including but not limited
to magnetic tapes, computer printouts, hard copies and microfilm copies)
received by Investor Services Group from the Fund, or any authorized third
party acting on behalf of the Fund, including but not limited to the prior
transfer agent for the Fund, in the performance of Investor Services
Group's duties and obligations hereunder;
(c) the reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund on behalf of
the applicable Portfolio;
(d) the offer or sales of shares in violation of any requirement under
the securities laws or regulations of any state that such shares be
registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of
such shares in such state, provided that Investor Services Group shall not
have contributed to such violation; and
(e) the Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's negligence or
misconduct or the breach of any representation or warranty of the Fund made
herein.
10.2. The Fund, its officers, employees, directors, partners, trustees and
agents shall not be liable for, and Investor Services Group shall indemnify and
hold the Fund harmless from and against any and all claims, made by third
parties, including costs, expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of any sort or kind (a
"Claim"), which result from a negligent act or omission to act, willful
misfeasance or bad faith by Investor Services Group in the performance of its
duties hereunder.
10.3. In any case in which one party (the "Indemnifying Party") may be
asked to indemnify or hold the other party (the "Indemnified Party") harmless,
the Indemnified Party will notify the Indemnifying Party promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party although the
failure to do so shall not prevent recovery by the Indemnified Party and shall
keep the Indemnifying Party advised with respect to all developments concerning
such situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party, and thereupon the Indemnifying Party
shall take over complete defense of the Claim and the Indemnified Party shall
sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party will not confess any Claim or make any compromise in any case
in which the Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Article 10 shall survive the termination of this
Agreement.
10.4. Any claim for indemnification under this Agreement must be made prior
to the earlier of:
(a) one year after the Indemnified Party becomes aware of the event
for which indemnification is claimed; or
(b) one year after the earlier of the termination of this Agreement or
the expiration of the then current term of this Agreement.
10.5. Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief the provisions of this Article 10 shall be
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which the Fund's indemnification obligations pursuant to this
Article 10 may apply.
ARTICLE 11 Standard of Care.
11.1. Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused by
Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees.
11.2. Neither party may assert any cause of action against the other party
under this Agreement that accrued more than two (2) years prior to the filing of
the suit (or commencement of arbitration proceedings) alleging such cause of
action.
11.3. Each party shall have the duty to mitigate damages for which the
other party may become responsible.
ARTICLE 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL INVESTOR SERVICES GROUP, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF
TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST
PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 13 Term and Termination.
13.1. This Agreement shall be effective on the date first written above and
shall continue for a period of three (3) years (the "Initial Term").
13.2. Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Fund or Investor Services Group provides written notice to the
other of its intent not to renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty (180) days prior to the
expiration of the Initial Term or the then current Renewal Term.
13.3. In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion thereof to a
successor service provider will be borne by the Fund.
13.4. 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, If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. 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.
13.5. Notwithstanding anything contained in this Agreement to the contrary,
should the Fund desire to move any of the services provided by Investor Services
Group hereunder to a successor service provider prior to the expiration of the
then current Initial or Renewal Term, or should the Fund or any of its
affiliates take any action which would result in Investor Services Group ceasing
to provide transfer agency or custody administration services to the Fund prior
to the expiration of the Initial or any Renewal Term, Investor Services Group
shall make a good faith effort to facilitate the conversion on such prior date,
however, there can be no guarantee that Investor Services Group will be able to
facilitate a conversion of services on such prior date. In connection with the
foregoing, should services be converted to a successor service provider or
should the Fund or any of its affiliates take any action which would result in
Investor Services Group ceasing to provide transfer agency or custody
administration services to the Fund prior to the expiration of the Initial or
any Renewal Term, the Fund shall pay to Investor Services Group an amount equal
to six month's fees.
ARTICLE 14 Additional Portfolios
14.1. In the event that the Fund establishes one or more Portfolios in
addition to those identified in Schedule A, with respect to which the Fund
desires to have Investor Services Group render services as transfer agent and
custody administrator under the terms hereof, the Fund shall so notify Investor
Services Group in writing, and if Investor Services Group agrees in writing to
provide such services, Schedule A shall be amended to include such additional
Portfolios.
ARTICLE 15 Confidentiality.
15.1. The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The Fund
and Investor Services Group shall exercise at least the same degree of care, but
not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. The Fund and Investor Services
Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party, The Fund and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Fund and Investor Services Group may also disclose
the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
15.2. Proprietary Information means:
(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, finance, operations,
customer relationships, customer profiles, sales estimates, business plans,
and internal performance results relating to the past, present or future
business activities of the Fund or Investor Services Group, 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 Fund or Investor Services
Group a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
15.3. Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party which now
exist or come into the control or possession of the other.
15.4. The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not limited
to, giving the other party as much advance notice of the possibility of
such disclosure as practical so the other party may attempt to stop such
disclosure or obtain a protective order concerning such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Confidential
Information disclosed under this Agreement.
ARTICLE 16 Force Majeure: Excused Non-Performance.
No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by (i) fire, flood, elements of nature or other
acts of God; (ii) any outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of any governmental
authority; (iv) any labor disputes (whether or not the employees' demands are
reasonable or within the party's power to satisfy); or (v) nonperformance by a
third party or any similar cause beyond the reasonable control of such party,
including without limitation, failures or fluctuations in telecommunications or
other equipment. In addition, no party shall be liable for any default or delay
in the performance of its obligations under this Agreement if and to the extent
that such default or delay is caused, directly or indirectly, by the actions or
inactions of the other party. In any such event, the non-performing party shall
be excused from any further performance and observance of the obligations so
affected only for as long as such circumstances prevail and such party continues
to use commercially reasonable efforts to recommence performance or observance
as soon as practicable.
ARTICLE 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary. Investor
Services Group may, in its sole discretion, engage subcontractors to perform any
of the obligations contained in this Agreement to be performed by Investor
Services Group.
ARTICLE 18 Notice.
Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
The Torray Fund
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, President
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
ARTICLE 19 Governing Law/Venue
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this agreement.
ARTICLE 20 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
ARTICLE 21 Captions.
The captions of this Agreement arc 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.
ARTICLE 22 Publicity.
Neither Investor Services Group nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating to this
Agreement or to the transactions contemplated by it without the prior review and
written approval of the other party; provided, however, that either party may
make such disclosures as are required by legal, accounting or regulatory
requirements after making reasonable efforts in the circumstances to consult in
advance with the other party.
ARTICLE 23 Relationship of Parties/Non-Solicitation.
23.1. The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
23.2. During the term of this Agreement and for one (1) year afterward, the
Fund shall not recruit or solicit, for the Fund or others, Investor Services
Group's employees.
ARTICLE 24 Entire Agreement: Severability.
24.1. Thus Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
24.2. The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties shall
in good faith modify or substitute such provision consistent with the original
intent of the parties. Without limiting the generality of this paragraph, if a
court determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement, including the
limitations on liability and exclusion of damages, shall remain fully effective.
ARTICLE 25 Miscellaneous
The Fund and Investor Services Group agree that the obligations of the
Fund under the Agreement shall not be binding upon any of the Board Members,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Fund individually, but are binding only upon the assets and
property of the Fund, as provided in the Articles of Incorporation. The
execution and delivery of this Agreement have been authorized by the Board
Members of the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such Board Members nor such execution
and delivery by such officer shall be deemed to have been made by any of 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 as provided in the Articles of Incorporation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
THE TORRAY FUND
By: _____________________________________
Xxxxxxx X. Xxxx
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: _____________________________________
Xxxxxxx X Xxxxx
Title: Senior Vice President
FIRST AMENDMENT TO SERVICES AGREEMENT
This Amendment dated as of __________, 2001 is made by and between The
Torray Fund (the "Fund") and PFPC Inc., f/k/a First Data Investor Services
Group, Inc. ("PFPC").
WITNESSETH THAT:
WHEREAS, the parties originally entered into a Services Agreement dated
November 30, 1999 (the "Agreement"), wherein PFPC agreed to provide certain
services to the Fund;
WHEREAS, the Parties reserved to themselves, pursuant to the provisions of
Article 14, the power to amend the Agreement to include additional Portfolios;
WHEREAS, the parties now desire to make certain changes to the Agreement as
set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Parties hereto, intending to be legally bound, do hereby
agree as follows:
1. All references in the Agreement (including any Exhibits and Schedules
thereto) to "First Data Investor Services Group, Inc." and "Investor
Services Group" are hereby deleted and replaced with "PFPC Inc." and "PFPC"
respectively.
2. Schedule A List of Portfolios is hereby deleted and replaced with the
attached Schedule A.
3. This Amendment constitutes the complete understanding and agreement of the
parties with respect to the subject matter hereof and supercedes all prior
communications with respect thereto.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be
signed by their duly authorized officers as of the day and year first written
above.
The Torray Fund PFPC Inc. (f/k/a First Data Investor
Services Group, Inc.)
By: _____________________________ By: ______________________________
Title: _____________________________ Title: ______________________________
SCHEDULE A
LIST OF PORTFOLIOS
The Torray Fund ,
The Torray Institutional Fund
SCHEDULE B
DUTIES OF INVESTOR SERVICES GROUP
I. TRANSFER AGENCY SERVICES
(a) Shareholder Information. Investor Services Group shall maintain a
record of the number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall indicate whether
such Shares are held in certificates or uncertificated form.
(b) Shareholder Services. Investor Services Group shall respond as
appropriate to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as may be from
time to time mutually agreed upon between Investor Services Group and the Fund.
(c) Share Certificates,
o At the expense of the Fund, the Fund shall supply Investor Services
Group with an adequate supply of blank share certificates to meet
Investor Services Group requirements therefor. Such Share certificates
shall be properly signed by facsimile. The Fund agrees that,
notwithstanding the death, resignation, or removal of any officer of
the Fund whose signature appears on such certificates, Investor
Services Group or its agent may continue to countersign certificates
which bear such signatures until otherwise directed by Written
Instructions.
o Investor Services Group shall issue replacement Share certificates in
lieu of certificates which have been lost, stolen or destroyed, upon
receipt by Investor Services Group of properly executed affidavits and
lost certificate bonds, in form satisfactory to Investor Services
Group, with the Fund and Investor Services Group as obligees under the
bond.
o Investor Services Group shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with respect
thereto) Investor Services Group shall maintain comparable records of
the Shareholders thereof, including their names, addresses and
taxpayer identification. Investor Services Group shall further
maintain a stop transfer record on lost and/or replaced certificates.
(d) Mailing Communications to Shareholders Proxy Materials. Investor
Services Group will address and mail to Shareholders of the Fund, all reports to
Shareholders, dividend and distribution notices and proxy material for the
Fund's meetings of Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
(e) Sales of Shares.
o Investor Services Group shall not be required to issue any Shares of
the Fund where it has received a Written Instruction from the Fund or
official notice from any appropriate authority that the sale of the
Shares of the Fund has been suspended or discontinued. The existence
of such Written Instructions or such official notice shall be
conclusive evidence of the right of Investor Services Group to rely on
such Written Instructions or official notice.
o In the event that any check or other order for the payment of money is
returned unpaid for any reason, Investor Services Group will endeavor
to: (i) give prompt notice of such return to the Fund or its designee;
(ii) place a stop transfer order against all Shares issued as a result
of such check or order; and (iii) take such actions as Investor
Services Group may from time to time deem appropriate.
(f) Transfer and Repurchase.
o Investor Services Group shall process all requests to transfer or
redeem Shares in accordance with the transfer or repurchase procedures
set forth in the Fund's Prospectus.
o Investor Services Group will transfer or repurchase Shares upon
receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for
transfer or redemption, accompanied by such documents as Investor
Services Group reasonably may deem necessary.
o Investor Services Group reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. Investor Services Group also
reserves the right to refuse to transfer or repurchase Shares until it
is satisfied that the requested transfer or repurchase is legally
authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or repurchases which Investor Services Group,
in its good judgement, deems improper or unauthorized, or until it is
reasonably satisfied that there is no basis to any claims adverse to
such transfer or repurchase.
o When Shares are redeemed, Investor Services Group shall, upon receipt
of the instructions and documents in proper form, deliver to the
Custodian and the Fund or its designee a notification setting forth
the number of Shares to be repurchased. Such repurchased shares shall
be reflected on appropriate accounts maintained by Investor Services
Group reflecting outstanding Shares of the Fund and Shares attributed
to individual accounts.
o Investor Services Group shall upon receipt of the monies provided to
it by the Custodian for the repurchase of Shares, pay such monies as
are received from the Custodian, all in accordance with the procedures
described in the written instruction received by Investor Services
Group from the Fund.
o Investor Services Group shall not process or effect any repurchase
with respect to Shares of the Fund after receipt by Investor Services
Group or its agent of notification of the suspension of the
determination of the net asset value of the Fund.
(g) Dividends.
o Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to
Shares of the Fund, the Fund shall furnish or cause to be furnished to
Investor Services Group Written Instructions setting forth the date of
the declaration of such dividend or distribution, the ex-dividend
date, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined, the amount
payable per Share to the Shareholders of record as of that date, the
total amount payable on the payment date and whether such dividend or
distribution is to be paid in Shares at net asset value.
o On or before the payment date specified in such resolution of the
Board of Directors, the Fund will provide Investor Services Group with
sufficient cash to make payment to the Shareholders of record as of
such payment date,
o If Investor Services Group does not receive sufficient cash from the
Fund to make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, Investor Services
Group will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until sufficient cash is
provided to Investor Services Group.
(h) Retirement Plans. In connection with the individual retirement account,
simplified employee pension plan, rollover individual retirement plan,
educational XXX and XXXX individual retirement account (each hereinafter
referred to as an "XXX" and, collectively, the "IRAs") within the meaning of
Section 408 of the Internal Revenue Code of 1986, as amended (the "Code")
offered by the Fund for which contributions of the Funds' shareholders (the
"Participants") in the IRA's are invested in shares of the Fund, Investor
Services Group shall provide the following administrative services in addition
to those services described herein:
o Establish a record of types and reasons for distributions (i.e.,
attainment of age 59 1/2, disability, death, return of excess
contributions, etc.);
o Record method of distribution requested and/or made;
o Receive and process designation of the beneficiary forms;
o Examine and process requests for direct transfers between
custodians/trustees, transfer and pay over to the successor assets in
the account and records pertaining thereto as requested;
o Prepare any annual reports or returns required to be prepared and/or
filed by a custodian of an XXX, including, but not limited to, an
annual fair market value report, Forms 1099R and 5498 and file with
the IRS and provide to Participant/Beneficiary; and
o Perform applicable federal withholding and send
anticipants/Beneficiaries an annual TEFRA notice regarding required
federal tax withholding.
(i) Cash Management Services.
(a) Investor Services Group shall establish demand deposit accounts
(DDA's) with a cash management provider to facilitate the receipt of
purchase payments and the processing of other Shareholder-related
transactions, Investor Services Group shall retain any excess balance
credits earned with respect to the amounts in such DDA's ("Balance
Credits") after such Balance Credits are first used to offset any banking
service fees charged in connection with banking services provided on behalf
of the Fund.
(b) Balance Credits will be calculated and applied toward the Fund's
banking service charges regardless of the withdrawal of DDA balances
described in Section (b) below. (b) DDA balances which cannot be forwarded
on the day of receipt may be withdrawn on a daily basis and invested in
U.S. Treasury and Federal Agency obligations, money market mutual funds,
repurchase agreements, money market preferred securities (rated A or
better), commercial paper (rated A1 or P1), corporate notes/bonds (rated A
or better) and/or Eurodollar time deposits (issued by banks rated A or
better). Investor Services Group bears the risk of loss on any such
investment and shall retain any earnings generated thereby. Other similarly
rated investment vehicles may be used, provided however, Investor Services
Group shall first notify the Fund of any such change.
(c) Investor Services Group may facilitate the payment of
distributions from the Fund which are made by check ("Distributions")
through the "IPS Official Check" program. "CPS Official Check" is a product
and service provided by Investor Services Group's affiliate, Integrated
Payment Systems ("IPS"). IPS is licensed and regulated as an "issuer of
payment instruments". In the event the IPS Official Check program is
utilized, funds used to cover such Distributions shall be forwarded to and
held by IPS. IPS may invest such funds while awaiting presentment of items
for payment. In return the services provided by IPS, IPS imposes a per item
charge which is identified in the Schedule of Out-of-Pocket Expenses
attached hereto and shall retain, and share with Investor Services Group,
the benefit of the revenue generated from its investment practices.
(j) Lost Shareholders. Investor Services Group shall perform such services
as are required in order to comply with Rules 17a-24 and 17Ad-17 of the 34 Act
(the "Lost Shareholder Rules"), including, but not limited to those set forth
below. Investor Services Group may, in its sole discretion, use the services of
a third party to perform the some or all such services.
o documentation of electronic search policies and procedures;
o execution of required searches o creation and mailing of confirmation
letters;
o taking receipt of returned verification forms;
o providing confirmed address corrections in batch via electronic media;
o tracking results and maintaining data sufficient to comply with the
Lost Shareholder Rules; and
o preparation and submission of data required under the Lost Shareholder
Rules.
II. CUSTODY ADMINISTRATION SERVICES
o Assign an experienced Custody Administrator to accept, control and
process the Fund's daily portfolio transactions.
o Match and review DTC eligible ID's and trade information with the
Fund's instructions for accuracy and coordinating with the Custodian
and the Accounting Agent for recording and affirmation processing with
the depository.
o Settle all depository eligible issues in a totally automated
environment. Transactions requiring physical delivery will be settled
through the Custodian's New York office.
o Assist the Fund in placing cash management trades through the
Custodian, such as commercial paper, CDs and repurchase agreements.
o Provide the Fund's fund accounting agent and investment Adviser with
daily custodian statements reflecting all prior day cash activity on
behalf of each portfolio by 8:30 a.m. eastern time. Complete
descriptions of any posting, inclusive of Sedo1/CUSIP numbers,
interest/dividend payment date, capital stock details, expense
authorizations, beginning/ending cash balances, etc., will be provided
by the Custodian's reports or system.
o Provide monthly activity statements combining both cash changes and
security trades, and a full portfolio listing.
o Communicate to the Fund and the Fund's fund accounting agent on any
corporate actions, capital changes and interest rate changes supported
by appropriate supplemental reports received from the Custodian.
Follow-up will be made with the Custodian to ensure all necessary
actions and/or paperwork is completed.
o Work with fund accounting and the Custodian Bank on monthly asset
reconciliations.
o Coordinate and resolve unsettled dividends, interest, paydowns and
capital changes. Assist in resolution of failed transactions and any
settlement problems.
o Provide a comprehensive program that audits transactions, monitors and
evaluates the Custodian's service and recommends changes that may
improve performance.
o Arrange for Securities Lending, Lines of Credit, and/or Letters of
Credit through the Custodian.
o Monitor Fund cash positions.
o Provide Automated Mortgage-Backed processing through the Custodian.
o Provide the Fund's auditors with trade documentation to help expedite
the fund's audit.
o Cooperation and communication between Fund Accounting, the Custodian
and the Transfer Agent is facilitated smoothly when Custody
Administration is performed by Investor Service Group.
o Investor Services Group shall be entitled to retain any excess balance
credits or fee reductions or other concessions or benefits earned or
generated by or associated with the Fund's custodial accounts or made
available by the institution at which such accounts are maintained
after such benefits are first applied towards banking service fees
charged to the Fund by such institution.
SCHEDULE C
FEE SCHEDULE
A. Fees Related to Shareholder Servicing
(a) Transfer Agent and Shareholder Services:
$19.00 per open account per year per portfolio.
This will be charged monthly.
$3.00 per closed account per year per portfolio.
This will be charged monthly.
$5.00 per Networked account per year per portfolio.
This will be charged monthly.
Minimum monthly fee - $2,250 per portfolio Each additional
class minimum monthly fee is $1, 250
(b) Volume related Charges
o If average calls per week exceed 250 a fee of $15 per average call
above 250 will be charged, o If average transactions per week exceed
500 a fee of $5 per average transaction above 500 will be charged.
* Transactions arc defined as purchases, redemptions, transfers or
exchanges.
B. Fees related to Custody Administration
Fees attributable to the Administration of the Custody of the Assets of the
Trust Using UMB Bank
I. Domestic Securities and ADRs (1/12th payable monthly)
Subject to a minimum monthly fee of $250 for each separate series of
shares, the Trust agrees to pay monthly for services related to the
administration of the custody of the assets of the Trust at the annual
rate of:
$.00010 on the first $100 million of average net assets $.00008 on
average net assets between $100 million and $300 million and $.00006
on average net assets in excess of $300 million
II. Custody Domestic Securities Transactions Charge: (billed monthly)
The Trust agrees to pay monthly for each transaction as set forth
below:
Book Entry DTC, Federal Book Entry, PTC $11.00
Physical Securities 24.00
Options and Futures 28.00
P & I Pay downs 5.50
Check Requests and Wires 8.00
A transaction includes buys, sells, maturities or free security
movements.
Cedel/Euroclear:
Safekeeping (annual charge) $0.0004
Transition Charge 30.00
Note: Safekeeping charge is calculated upon month end market value.
III. When Issued, Securities Lending, Index Futures:
Separate segregated custody account monthly fee $250.00
IV. Custody Miscellaneous Fees
Administrative fees incurred in certain local markets will be passed
onto the customer with a detailed description of the fees. Fees
include income collection, corporate action handling, overdraft
charges, funds transfer, special local taxes, stamp duties,
registration fees, messenger and courier services and other
out-of-pocket expenses.
C. Lust Shareholder Search/Reporting:
$2.75 per account search*
* The per account search fee shall be waived until June 2000 so
long as the Fund retains Xxxxx Tracers, Inc. ("KTI") to
provide the Fund with KTI's "In-Depth Research Program"
services.
D. Print/Mail Fees.
(a) Standard Pricing:
Implementation Fee $5,000 (waived for conversion)
Testing Application or Data Requirements: $3.00/fax
Work Order: $15.00 per work order
Daily Work (Confirms):
Hand: $71/K (includes BRE or CPE)
$0.07/each additional insert
Machine: $42/K (includes BRE or CRE)
$0.01/each additional insert
Daily Checks*
Hand: $91/K (includes 1 insert)
$0.08/each additional insert
Machine: $52/K(includes 1 insert)
$0.01/each additional insert
There is a $3.00 charge for each 3606 Form sent.
Statements:
Hand: $78/K with $20.00 minimum (includes BRE or CRE)
$0.08/each additional insert
$125/K for intelligent inserting
Machine: $52/K with $20.00 minimum (includes BRE or CRE)
$0.01 each additional insert
$58/K for intelligent inserting
Periodic Checks:
Hand: $91/K with $30.00 minimum (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $30.00 minimum (includes 1 insert)
$0.01/each additional insert
12B1/Dealer Commission
Cheeks/Statement: $0.78/each envelope with $30.00 minimum
Space Reports/Group Statements: $78/K with $20.00 minimum
List bills: $0.78 per envelope with $20.00 minimum
Printing Charges: (price ranges dependent on volumes)
$0.08/per confirm/statement/page
$0.10/per check
Folding (Machine): $18/K
Folding (Hand): $.12 each
Presort Charge: postage rate
$0.035 per piece
Fast Forward: $0.15 per piece
Courier Charges: $15.00 for each on call courier trip/or actual cost
for on demand
Overnight Charges: $3.50 per package service charge plus Federal
Express/Airborne charge
Inventory Storage: $20.00 for each inventory location as of the 15th
of the month
Inventory Receipt: $20.00 for each SKU/Shipment
Hourly work: special projects, opening envelopes, etc.: $24.00 per hour
Special Pulls: $2.50 par account pull
Boxes/Envelopes: Shipping boxes $0.85 each
Oversized Envelopes: $0.45 each
Forms Development/Programming Fee: $100/hr
Systems Testing: $85/hr
Cutting Charges: $10.00/K
(b) Special Mailings:
Special mailing pricing is based on appropriate notification (standard
of 30 day notification) and scheduling for special mailings.
Scheduling requirements include having collateral arrive at agreed
upon times in advance of deadlines. Mailings which arise with shorter
time frames and turns will be billed at a premium based on turn around
requirements.
Work Order: $30.00 per Work Order
Daily Work (Confirms):
Hand: $135.00 to create an admark rape
$10.00/K to zip + 4 data enhance/$125.00 minimum
$80.00/hr for any data manipulation
$10.00/K combo charge
Admark & Machine Insert # 10, # 11, 6x9: $62/K to admark envelope and
machine insert 1 price/$125.00 min $2.50/K for each additional insert
$38/K to admark only with $75.00 minimum $25.00/X xxxx sort 9x 12:
$l35/K to admark envelope and machine insert I piece/$125.00 min
$5.00/K for each additional insert $38/K to admark only/$75.00 minimum
$0.08 for each hand insert
Admark & Hand Insert:
#10, #11, 6x9: $0.08 for each hand insert
$25.00/X xxxx sort
9x 12 $0.09 for each hand insert
$35.00/X xxxx sort
Pressure/Sensitive Labels:
$0.32 each to create, affix and hand insert 1 piece/$75.00
minimum $0.08 for each hand insert $0.10 to affix labels only
$0.10 to create labels only
Legal Drop: $150.00/compliant legal drop per job and processing fees
Create Mailing List: $0.40 per entry with $75.00 minimum
Presort Fee: $0.035 per piece
E. Miscellaneous Charges.
The Fund shall be charged for the following products and services as
applicable:
o Ad hoc reports
o Ad hoc SQL time
o COLD Storage
o Digital Recording
o Ranking Services, including incoming and outgoing wire charges
o Microfiche/microfilm production
o Magnetic media tapes and freight
o Manual Pricing
o Materials for Rule 15e-3 Presentations
o Pre-Printed Stock, including business forms, certificates, envelopes,
checks and stationary
F. Fee Adjustments.
After the one year anniversary of the effective date of this Agreement,
Investor Services Group may adjust the fees described in the above sections once
per calendar year, upon thirty (30) days prior written notice in an amount not
to exceed the cumulative percentage increase in the Consumer Price Index for All
Urban Consumers (CPI-U) U.S. City Average, All items (unadjusted) -
(1982-84-100), published by the U.S. Department of Labor since the last such
adjustment in the Client's monthly fees (or the Effective Date absent a prior
such adjustment).
G. Programming Costs.
The following programming rates are subject to an annual 5% increase after
the one year anniversary of the effective date of this Agreement.
(a) Dedicated Team: Programmer. $100,000 per annum
BSA: $85,000 pct annum
Tester: $65,000 per annum
(b) System Enhancements (Non Dedicated Team): $150.00 per/hr per programmer
SCHEDULE D
OUT-OF-POCKET EXPENSES
The Fund shall reimburse Investor Services Group monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
o Postage - direct pass through to the Fund
o Telephone and telecommunication costs, including all lease,
maintenance and line costs
o Proxy solicitations, mailings and tabulations
o Shipping, Certified and Overnight mail and insurance o Terminals,
communication lines, printers and other equipment and any expenses
incurred in connection with such terminals and lines
o Duplicating services
o Distribution and Redemption Check Issuance
o Courier services
o Federal Reserve charges for check clearance
o Overtime, as approved by the Fund
o Temporary staff, as approved by the Fund
o Travel and entertainment, as approved by the Fund
o Record retention, retrieval and destruction costs, including, but not
limited to exit fees charged by third party record keeping vendors
o Third party audit reviews
o Insurance
o Such other expenses as are agreed to by Investor Services Group and
the Fund
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with Investor Services Group. In addition, the
Fund will promptly reimburse Investor Services Group for any other unscheduled
expenses incurred by Investor Services Group whenever the Fund and Investor
Services Group mutually agree that such expenses are not otherwise properly
borne by Investor Services Group as part of its duties and obligations under the
Agreement.
SCHEDULE E
FUND DOCUMENTS
o Certified copy of the Articles of Incorporation of the Fund, as
amended
o Certified copy of the By-laws of the Fund, as amended
o Copy of the resolution of the Board of Directors ratifying the
execution and delivery of this Agreement
o Copies of all agreements between the Fund and its service providers o
Specimens of the certificates for Shares of the Fund, if applicable,
in the form approved by the Board of Directors of the Fund, with a
certificate of the Secretary of the Fund as to such approval
o All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by the
Fund
o Certified list of Shareholders of the Fund with the name, address and
taxpayer identification number of each Shareholder, and the number of
Shares of the Fund held by each, certificate numbers and denominations
(if any certificates have been issued), lists of any accounts against
which stop transfer orders have been placed, together with the reasons
therefore, and the number of Shares redeemed by the Fund
o All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Fund or as required by law and shall perform such other
specific duties as arc set forth in the Articles of Incorporation
including the giving of notice of any special or annual meetings of
shareholders and any other notices required thereby.
o A listing of all jurisdictions in which each Portfolio is registered
and lawfully available for sale as of the date of this Agreement and
all information relative to the monitoring of sales and registrations
of Fund shares in such jurisdictions
o Each Fund's most recent post-effective amendment to its Registration
Statement
o Each Fund's most recent prospectus and statement of additional
information, if applicable, and all amendments and supplements thereto
