ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 30th day of November, 1999 (the "Effective
Date") between THE TORRAY CORPORATION (the "Company"), a Maryland Corporation
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 Torray Fund (the "Fund") is registered as an open-end,
management investment company, under the Investment Company Act of 1940, as
amended (the "Act");
WHEREAS, the Company desires to appoint Investor Services Group as
Accounting Services Agent to maintain and keep current the books, accounts,
records, journals or other records of original entry relating to the business of
the Fund (the "Accounts and Records") and to perform certain other functions in
connection with such Accounts and Records pursuant to the terms and conditions
set forth in this Agreement and in Schedule B attached hereto; and
WHEREAS, the Company is responsible for the provision of accounting
services pursuant to an agreement between the Company and the Fund dated as of
November 16, 1990; and
WHEREAS, Investor Services Group is willing to serve in such capacity and
perform such functions pursuant to the terms and conditions set forth in this
Agreement and in Schedule B attached hereto; and
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; and
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; and
NOW THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Company and Investor Services Group agree as follows:
I. Definitions.
A. Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1. "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.
2. "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.
3. "Board Members" shall mean the Directors or Trustees of the
governing body of the Fund, as the case may be.
4. "Board of Directors" shall mean the Board of Directors or Board of
Trustees of the Fund, as the case may be.
5. "Commencement Date" shall mean the date on which Investor Services
Group commences providing services to the Company pursuant to this
Agreement.
6. "Commission" shall mean the Securities and Exchange Commission.
7. "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.
8. "1934 Act" shall mean the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
9. "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;
10. "Portfolio" shall mean each separate series of shares offered by
the Fund representing interests in a separate portfolio of securities and
other assets;
11. "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.
12. "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.
13. "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
14. "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.
II. Appointment of Investor Services Group.
The Company hereby appoints Investor Services Group, as the agent of the
Company, to provide accounting services for the benefit of the Fund, subject to
the supervision of the Company and the Board of Trustees of the Fund for the
period and on the terms set forth in this Agreement. The Company may appoint
Investor Services Group as accounting services agent for any additional Series
which, from time to time, may be added to the Fund as provided in Article 14 of
this Agreement. Investor Services Group accepts such appointment and agrees to
furnish the services herein set forth in Schedule B in return for compensation
as provided in Article 6 and Schedule C hereto.
III. Duties of Investor Services Group.
A. Investor Services Group shall be responsible for acting as fund
accounting agent for the Company, as more fully described in the written
schedule of Duties of Investor Services Group annexed hereto as Schedule B and
incorporated herein, and subject to the supervision and direction of the
Company.
B. In performing its duties under this Agreement, Investor Services Group
will act in accordance with the Articles of Incorporation, By-Laws, Prospectuses
and with the Oral Instructions and Written Instructions of the Authorized
Persons and will conform to and comply with the requirements of the 1940 Act and
all other applicable federal or state laws and regulations. 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.
C. In addition to the duties set forth herein, Investors 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 Company
and Investor Services Group.
IV. Recordkeeping and Other Information.
A. 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 law, 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.
B. 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.
V. Instructions.
A. 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
Company or the Fund.
B. At any time, Investor Services Group may request Written Instructions
from the Company and may seek advice from 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 Investor Services Group. Written Instructions
requested by Investor Services Group will be provided by the Company within a
reasonable period of time.
C. 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 Company only if said representative is
an Authorized Person. The Company agrees that Instructions, and that the
Company's failure to so confirm shall not impair in any respect Investor
Services Group's right to rely on Oral Instructions.
VI. Compensation.
A. The Company 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.
B. In addition to those fees set forth in Section 6.1 above, the Company
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.
C. The Company agrees to pay all fees, charges and out-of-pocket expenses
to Investor Services Group by Federal Funds Wire within fifteen (15) business
day following the receipt of the respective invoice.
D. Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule D, a revised Fee Schedule executed and dated by the
parties hereto.
E. The Company acknowledges that the fees and charges that Investor
Services Group charges the Company 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 Company agrees to the stated allocation of risk.
F. 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 Company. The compensation of such person or
persons shall be paid by Investor Services Group and no obligation shall be
incurred on behalf of the Company in such respect.
G. 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.
VII. Documents.
In connection with the appointment of Investor Services Group, the Company
shall, on or before the date this Agreement goes into affect, but in any case
within a reasonable period or 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.
VIII. Investor Services Group System.
A. Investor Services Group 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,
an other related legal rights utilized by Investor Services Group in connection
with the services provided by Investor Services Group to the Company herein (the
"Investor Services Group System").
B. Investor Services Group hereby grants to the Company 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.
C. In the event that the Company, including any affiliate or agent of the
Company or any third party acting on behalf of the Company, 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 non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
IX. Representations and Warranties.
A. Investor Services Group represents and warrants to the Company that:
1. it is a corporation duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
2. it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter in and perform this Agreement;
3. all requisite corporate proceedings have been taken to authorize it
to enter into this Agreement;
4. 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;
5. it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under their Agreement; and
6. 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 value 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.
B. The Company represents and warrants to Investor Services Group that:
1. it is duly organized, existing and in good standing under the laws
of the State of Maryland;
2. it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement; and
3. all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize it
to enter into this Agreement
C. 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 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 OR 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.
X. Indemnification.
A. Investor Services Group shall not be responsible for and the Company
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:
1. 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;
2. 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 Company, or any authorized
third party acting on behalf of the Company in the performance of Investor
Services Group's duties and obligations hereunder;
3. the reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Company;
4. 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
5. the Company's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Company's negligence or
misconduct or the breach of any representation or warranty of the Company
made herein.
B. The Company, its officers, employees, directors, partners, trustees and
agents shall not be liable for, and Investor Services Group shall indemnify and
hold the Company harmless from and against any and all claims, made by third
parties, including costs, expenses (including reasonable attorney's 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 or its
duties hereunder.
C. 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
defenses 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 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.
D. Any claim for indemnification under this Agreement must be made prior to
the earlier of:
1. one year after the Indemnified Party becomes aware of the event for
which indemnification is disclaimed; or
2. one year after the earlier of the termination of this Agreement or
the expiration of the then current term of this Agreement.
E. 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 Company's indemnification obligations pursuant to
this Article 10 may apply.
XI. Standard of Care.
A. 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 Company unless said errors are caused
by Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees.
B. 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.
C. Each party shall have the duty to mitigate damages for which the other
party may become responsible.
XII. 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, CONTACT, 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.
XIII. Term and Termination.
A. This Agreement shall be effective on the date first written above and
shall continue for a period of three (3) years (the "Initial Term").
B. Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Company 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.
C. In the event a termination notice is given by the Company, all expenses
associated with movement of records and material sand conversation thereof to a
successor service provider will be borne by the Company.
D. 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 the
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.
E. Notwithstanding anything contained in this Agreement to the contrary,
should the Company desire to move any of the service 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 Company or any of its
affiliates take any action which would result in Investor Services Group ceasing
to provide fund accounting services to the Company 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 Company or
any of its affiliates take any action which would result in Investor Services
Group ceasing to provide fund accounting services to the company prior to the
expiration of the Initial or any Renewal Term, the Company shall pay to Investor
Services Group an amount equal to six month's fees.
XIV. Additional Portfolios.
A. In the event that the Fund establishes one or more Portfolios in
addition to those identified in Schedule A, with respect to which the Company
desires to have Investor Services Group render services as fund accounting agent
under the terms hereof, the company 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.
XV. Confidentiality.
A. 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
Company 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 Company 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 Company 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 Company 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 Company or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
B. Proprietary Information means:
1. 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 Company or Investor Services Group, their
respective subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them;
2. 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 Investor
Services Group a competitive advantage over its competitors; and
3. 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.
C. 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.
D. The obligations of confidentiality and restriction on use herein shall
not apply to any Confidential Information that a party proves:
1. 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
2. Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
3. Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other arty; or
4. 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
5. Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Confidential
Information disclosed under this Agreement.
XVI. Force Majeure; Excused Non-Performing.
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 of delay is caused, directly or indirectly, by the actions or
inaction 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.
XVII. 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.
XVIII. Notice.
Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Company 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 Company:
The Torray Corporation
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
XIX. 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.
XX. Counterparts.
This Agreement may be executed is any number of counterparts, each of which
shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
XXI. Captions.
The captions of this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
XXII. Publicity.
Neither Investor Services Group nor the Company 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.
XXIII. Relationship of Parties/Non Solicitation.
A. The parties agree that they are independent contractors and not partners
or co-venturers and nothing contained herein shall be interpreted or construed
otherwise.
B. During the term of this Agreement for one (1) year afterward, the
Company shall not recruit or solicit, for the Company or others, Investor
Services Group's employees.
XXIV. Entire Agreement; Severability.
A. This 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
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.
B. 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.
XXV. Miscellaneous.
The Company and Investor Services Croup agree that the obligations of the
Company 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 Company individually, but are binding only upon the assets and
property of the Company, as provided in the Articles of Incorporation. The
execution and delivery of this Agreement have been authorized by the Board
Members of the Company, and signed by an authorized officer of the Company,
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 Company 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 CORPORATION
By: /s/ Xxxxxxx X Xxxx
------------------------
Xxxxxxx X Xxxx
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx
Title: Senior Vice President
FIRST AMENDMENT TO
ACCOUNTING SERVICES AGREEMENT
This Amendment dated as of , 2001 is made by and between The Torray
Corporation (the "Company") and PFPC Inc., f/k/a First Data Investor Services
Group, Inc. ("PFPC").
WITNESSETH THAT:
WHEREAS, the parties originally entered into an Accounting Services
Agreement dated November 30, 1999 (the "Agreement"), wherein PFPC agreed to
provide certain services to the Company;
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 Corporation 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
Performing fund accounting and bookkeeping services (including the
maintenance of such account, books and records of the Fund as may be required by
Section 31(a) of the 0000 Xxx) as follows:
o Daily, Weekly, and Monthly Reporting
o Portfolio and General Ledger Accounting
o Daily Valuation of all Portfolio Securities
o Daily Valuation and NAV Calculation
o Comparison of NAV to market movement
o Review research of price tolerance/fluctuation report to market
movements and events
o Research of items appearing on the price exception report
o Weekly cost monitoring along with market-to-market valuations is
accordance with Rule 2a-7
o Security trade processing
o Daily cash and position reconciliation with the custodian bank
o Daily updating of price and distribution rate information to the
Transfer Agent/Insurance Agent
o Daily support and report delivery to Portfolio Management
o Daily calculation of Portfolio adviser fees and waivers
o Daily calculation of distribution rates
o Daily investable cash call
o Monitor and research aged receivables
o Collect aged income items and perform reclaims
o Update NASDAQ reporting
o Daily maintenance of each Portfolio's general ledger including expense
accruals
o Daily NAV per share notification to other vendors as required
o Calculation of 30-day SEC yields and total returns
o Preparation of month-end reconciliation package
o Monthly reconciliation of Portfolio expense records
o Application of monthly pay down gain/loss
o Preparation of all annual and semi-annual audit work papers
SCHEDULE C
FEE SCHEDULE
A. Fees related to Portfolio Valuation and Mutual Fund Accounting
I. Annual Fee Schedule Per Domestic Portfolio: U.S. Dollar Denominated
Securities only (1/12th payable monthly)
$50,000 minimum
.0001 on the first $500 Million of Average Net Assets
.000075 on the next $500 Million of Average Net Assets
.000025 above $1 Billion of Average Net Assets
II. Pricing Services Quotation Fee: Specific costs will be identified
based upon options selected by The Torray Corporation and will be
billed monthly.
First Data Investor Services Group ("Investor Services Group") does not
currently pass along the charges for the U.S. equity prices supplied by
Xxxxxx Data. Should the Fund invest in security types other than
domestic equities supplied by Xxxxxx, the following fees would apply:
---------------------------------------------------- ----------------- ------------------- -----------------
Xxxxxx Data Interactive X.X. Xxxxx
Security Types Corp.* Data Corp.* Co., Inc.*
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Government Bonds $ $ $
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Mortgage-Backed (evaluated,
seasoned, closing)
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Corporate Bonds (short and
long term)
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U.S. Municipal Bonds (short
and long term)
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CMO's/ARM's/ABS
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Convertible Bonds
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High Yield Bonds
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Mortgage-Backed Factors
(per Issue per Month)
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Domestic Equities (d) .15 n/a
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Domestic Options
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Domestic Dividends & Capital
Changes (per Issue per Month)
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Foreign Securities
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Foreign Securities Dividends
& Capital Changes
(per Issue per Month)
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Set-up Fees
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All Added Items .25(c)
---------------------------------------------------- ----------------- ------------------- -----------------
* Based on current Vendor costs, subject to change. Costs are quoted
based on individual security CUSIP/identifiers and are per issue
per day.
(a) $35.00 per day minimum
(b) $25.00 per day minimum
(c) $1.00, if no CUSIP
(d) At no additional cost to INVESTOR SERVICES GROUP clients
(e) Interactive Data also charges monthly transmission cost
and disk storage charges.
A) Futures and Currency Forward Contracts $2.00 per Issue per Day
B) Telerate Systems, Inc.* (if applicable)
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected
by The Torray Corporation and will be billed monthly.
C) Reuters, Inc.*
*Based on current vendor costs, subject to change.
INVESTOR SERVICES GROUP does not currently pass along the
charges for the domestic security prices supplied by Reuters, Inc.
III. SEC Yield Calculation: (if applicable)
Provide up to 12 reports per year to reflect the yield calculations
for non-money market funds required by the SEC, $1,000 per year per
Fund. For multiple class Funds, $1,000 per year per class. Daily SEC
yield reporting is available at $3,000 per year per Fund (US dollar
denominated securities only).
B. Miscellaneous Charges.
The Company 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 Banking Services, including incoming and outgoing wire charges
o Microfiche/microfilm production
o Magnetic media tapes and freight
o Manual Pricing
o Materials for Rule 15c-3 Presentations
o Pre-Printed Stock, including business forms, certificates, envelopes,
checks and stationery
C. 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 Customer 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).
D. Programming Costs.
The following programming rates are subject to an annual 5% increase after the
one year anniversary of the effective of this Agreement.
(a) Dedicated Team Programmer: $100,000 per annum
BSA: $85,000 per 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 Company 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 Company
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 Company
o Temporary staff, as approved by the Company
o Travel and entertainment, as approved by the Company
o Record retention, retrieval an destruction costs, including, but not
limited to exit fees charged by third party record keeping vendors
o Third party audit reviews
o Insurance
o Pricing services (or services used to determine Fund NAV) o Vendor set-up
charges for Blue sky and other services o Blue Sky filing or registration
fees o XXXXX filing fees o Vendor pricing comparison
o Such other expenses as art agreed to by Investor Services Group and the
Company
The Company agrees that postage and mailing expenses Trial be paid on the day of
or prior to mailing as agreed with Investor Services Group. In addition, the
Company will promptly reimburse Investor Services Croup for any other
unscheduled expenses incurred by Investor Services Group whenever the Company
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 Funds, 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 sad shall perform such other specific duties as are
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
