EX-99.23(g)(1)
FORM OF CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is entered into as of October _____, 2007 and effective
retroactively to February 2, 2007 by and between PFPC TRUST COMPANY, a limited
purpose trust company incorporated under the laws of Delaware ("PFPC Trust"),
and THE ROXBURY FUNDS, a Delaware statutory trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
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(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person
authorized by the Fund to give Oral or Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed by both
parties hereto.
(d) "BOOK-ENTRY SYSTEM" means the Federal Reserve Treasury book-entry
system for United States and federal agency securities, its successor
or successors, and its nominee or nominees and any book-entry system
registered with the SEC under the 1934 Act.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC Trust from
an Authorized Person or from a person reasonably believed by PFPC
Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic mail
as Oral Instructions.
(f) "PFPC TRUST" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(g) "SEC" means the Securities and Exchange Commission.
(h) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act and the 1940 Act.
(i) "SHARES" mean the shares of beneficial interest of any series or class
of the Fund.
(j) "STANDARD OF CARE" means the responsibility of PFPC Trust to fulfill
its obligations under this Agreement without willful misfeasance, bad
faith, negligence or reckless disregard of its duties.
(k) "PROPERTY" means:
(i) any and all securities and other investment items which the
Fund may from time to time deposit, or cause to be deposited,
with PFPC Trust or which PFPC Trust may from time to time hold
for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received by PFPC Trust from time to time, from or on
behalf of the Fund.
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(l) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized Persons (or persons reasonably believed by PFPC Trust to be
Authorized Persons) and received by PFPC Trust or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The instructions may be
delivered electronically (with respect to sub-item (ii) above) or by
hand, mail or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund as set forth herein, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PFPC Trust accepts such
appointment and agrees to furnish such services. PFPC Trust shall be under
no duty to take any action hereunder on behalf of the Fund or any portfolio
except as specifically set forth herein or as may be specifically agreed to
by PFPC Trust and the Fund in a written amendment hereto.
3. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with material applicable requirements of
the Securities Laws and material laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to
be performed by PFPC Trust hereunder. Except as specifically set forth
herein, PFPC Trust assumes no responsibility for such compliance by the
Fund or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only
upon Oral Instructions or Written Instructions.
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(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives pursuant to this Agreement. PFPC Trust
may assume that any Oral Instructions or Written Instructions received
hereunder are not in any way inconsistent with the provisions of
organizational documents of the Fund or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's
shareholders, unless and until PFPC Trust receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are
given by PFPC Trust or its affiliates) so that PFPC Trust receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC Trust or differ from the
Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions
or PFPC Trust's ability to rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from the
Fund.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any question
of law pertaining to any action it should or should not take, PFPC
Trust may request advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC Trust, at
the option of PFPC Trust).
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(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and follow the advice of counsel.
PFPC Trust shall provide the Fund with prior written notice of its
intention to follow advice of counsel that is materially inconsistent
with Oral Instructions or Written Instructions. PFPC Trust shall
further provide the Fund with a copy of such advice of counsel.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be indemnified by the Fund
and without liability for any action PFPC Trust takes or does not take
in reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from or on behalf of the Fund or from
counsel and which PFPC Trust believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC Trust (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
6. RECORDS; VISITS. The books and records pertaining to the Fund and any
Portfolio, which are in the possession or under the control of PFPC Trust,
shall be the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC Trust's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by PFPC Trust to the Fund or to an
authorized representative of the Fund, at the Fund's expense.
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7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (i) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or PFPC Trust, their respective subsidiaries and
affiliated companies; (ii) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund or PFPC
Trust a competitive advantage over its competitors; (iii) all confidential
or proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (iv) anything designated as confidential.
Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality obligations
if: (i) it is already known to the receiving party at the time it is
obtained; (ii) it is or becomes publicly known or available through no
wrongful act of the receiving party; (iii) it is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (iv) it is released by the protected party
to a third party without restriction; (v) it is requested or required to be
disclosed by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law (provided the receiving
party will provide the other party written notice of the same, to the
extent such notice is permitted); (vi) release of such information by PFPC
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Trust is necessary or desirable in connection with the provision of
services under this Agreement; (vii) it is Fund information provided by
PFPC Trust in connection with an independent third party compliance or
other review; (viii) it is relevant to the defense of any claim or cause of
action asserted against the receiving party; or (ix) it has been or is
independently developed or obtained by the receiving party.
8. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to make
any requested information available to such accountants as reasonably
requested by the Fund.
9. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Fund.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC Trust shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure provided such loss or interruption is not
caused by PFPC Trust's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
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11. COMPENSATION.
(a) As compensation for custody services rendered by PFPC Trust during the
term of this Agreement, the Fund, on behalf of each of the Portfolios,
will pay to PFPC Trust a fee or fees as may be agreed to in writing
from time to time by the Fund and PFPC Trust. The Fund acknowledges
that PFPC Trust may receive float benefits in connection with
maintaining certain accounts required to provide services under this
Agreement.
(b) The undersigned hereby represents and warrants to PFPC Trust that (i)
the terms of this Agreement, (ii) the fees and expenses associated
with this Agreement, and (iii) any benefits accruing to PFPC Trust or
to the adviser or sponsor to the Fund in connection with this
Agreement, including but not limited to any fee waivers, conversion
cost reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC Trust to such adviser or sponsor
or any affiliate of the Fund relating to this Agreement have been
fully disclosed to the Board of Trustees of the Fund and that, if
required by applicable law, such Board of Trustees has approved or
will approve the terms of this Agreement, any such fees and expenses,
and any such benefits.
12. STANDARD OF CARE/LIMITATIONS OF LIABILITY.
(a) Subject to the terms of this Section 12, PFPC Trust shall be liable to
the Fund (or any person or entity claiming through the Fund) for damages
only to the extent caused by PFPC Trust's failure to meet its Standard of
Care.
(b) Notwithstanding anything in this Agreement to the contrary (other than
as specifically provided in Section 14(h)(ii)(B)(4) and Section
14(h)(iii)(A) of this Agreement), the Fund shall be responsible for all
filings, tax returns and reports on any
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transactions undertaken pursuant to this Agreement, or in respect of the
Property or any collections undertaken pursuant to this Agreement, which
may be requested by any relevant authority. In addition, the Fund shall be
responsible for the payment of all taxes and similar items (including
without limitation penalties and interest related thereto).
(c) PFPC Trust's liability to the Fund and any person or entity claiming
through the Fund for any loss, claim, suit, controversy, breach or damage
of any nature whatsoever (including but not limited to those arising out of
or related to this Agreement) and regardless of the form of action or legal
theory ("Loss") shall not exceed the lesser of (i) the fees received by
PFPC Trust for services provided hereunder during the twenty four (24)
months immediately prior to the date of such Loss or (ii) $2,000,000.
(d) PFPC Trust shall not be liable for damages (including without
limitation damages caused by delays, failure, errors, interruption or loss
of data) occurring directly or indirectly by reason of circumstances beyond
its reasonable control, including without limitation acts of God; action or
inaction of civil or military authority; national emergencies; public
enemy; war; terrorism; riot; fire; flood; catastrophe; sabotage; epidemics;
labor disputes; civil commotion; interruption, loss or malfunction of
utilities, transportation, computer or communications capabilities;
insurrection; elements of nature; non-performance by a third party; failure
of the mails; or functions or malfunctions of the internet, firewalls,
encryption systems or security devices caused by any of the above.
(e) PFPC Trust shall not be under any duty or obligation to inquire into
and shall not be liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information
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which PFPC Trust reasonably believes to be genuine. PFPC Trust shall not be
liable for any damages that are caused by actions or omissions taken by
PFPC Trust in accordance with Written Instructions or advice of counsel.
PFPC Trust shall not be liable for any damages arising out of any action or
omission to act by any prior service provider of the Fund or for any
failure to discover any such error or omission, except to the extent PFPC
Trust provided services to the Fund prior to the effective date of this
Agreement.
(f) Neither PFPC Trust nor its affiliates shall be liable for any
consequential, incidental, exemplary, punitive, special or indirect
damages, whether or not the likelihood of such damages was known by PFPC
Trust or its affiliates.
(g) Neither party may assert a cause of action against the other party or
any of its affiliates for any alleged cause of action relating to this
Agreement more than the later of 12 months after such cause of action arose
or 12 months after the actual discovery of such alleged breach.
(h) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(i) This Section 12 shall survive termination of this Agreement.
13. INDEMNIFICATION.
(a) Absent PFPC Trust's failure to meet its Standard of Care, the Fund agrees
to indemnify, defend and hold harmless PFPC Trust and its affiliates and
their respective directors, trustees, officers, agents and employees from
all claims, suits, actions, damages, losses, liabilities, obligations,
costs and reasonable expenses (including attorneys' fees and court costs,
travel costs and other reasonable out-of-pocket costs related to dispute
resolution)
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arising directly or indirectly from: (i) any action or omission to act by
any prior service provider of the Fund, except to the extent PFPC Trust
provided services to the Fund prior to the effective date of this
Agreement; and (ii) any action taken or omitted to be taken by PFPC Trust
in connection with the provision of services to the Fund.
(b) PFPC Trust will indemnify, defend, and hold harmless the Fund and its
officers, trustees, and employees, from all claims, suits, actions,
damages, losses, liabilities, obligations, costs and reasonable expenses
(including attorneys' fees and court costs, travel costs and other
reasonable out-of-pocket costs related to dispute resolution) to the extent
arising directly out of PFPC Trust's failure to meet its Standard of Care.
(c) LEGAL ACTION AGAINST INDEMNIFICATION PARTY.
(i) NOTICE OF THE ACTION. A party that seeks indemnification under
this Section 13 must promptly give the other party notice of
any legal action. But a delay in notice does not relieve an
indemnifying party of any liability to an indemnified party,
except to the extent the indemnifying party shows that the
delay prejudiced the defense of the action.
(ii) PARTICIPATING IN OR ASSUMING THE DEFENSE. The indemnifying
party may participate in the defense at any time or it may
assume the defense by obtaining consent of the indemnified
party, which shall not be unreasonably withheld, delayed or
conditioned, and the parties shall reasonably cooperate with
each other. After assuming the defense, the indemnifying
party:
(1) must select an attorney that is satisfactory to the other
party;
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(2) shall permit the indemnified party to participate in
settlement or defense through separate counsel chosen by
the indemnified party (subject to the consent of the
indemnifying party, which consent shall not be
unreasonably withheld), provided that the fees and
expenses of such counsel shall not be borne by the
indemnifying party unless one of the following conditions
shall exist: (x) the indemnifying party shall have failed
to assume the defense of such claim or employ counsel
reasonably satisfactory to the indemnified party, or (y)
the defendants in any such action include both the
indemnifying party and the indemnified party and the
indemnified party has reasonably concluded that there may
be legal defenses available to it which are different
from or additional to those available to the indemnifying
party, or (z) there exists or will exist a conflict of
interest between the indemnified party and the
indemnifying party for the same counsel to represent both
the indemnifying party and the indemnified party and;
(3) must not compromise or settle the action (unless such
compromise or settlement includes as an unconditional
term thereof the giving by the claimant or plaintiff to
the indemnified party of a release from all liability in
respect to such action) without the other party's consent
(but the other party must not unreasonably withhold its
consent); and
(4) is not liable for any compromise or settlement made
without its consent, so long as indemnifying party is
contesting the indemnifiable claim in good faith.
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(iii) FAILING TO ASSUME THE DEFENSE. If the indemnifying party fails
to participate in or assume the defense within 30 days after
receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any
compromise or settlement made by the other party provided,
however, that the indemnified party shall notify the
indemnifying party of any compromise or settlement of any such
indemnifiable claim.
(d) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Portfolios,
including cash received as a result of the distribution of Shares,
during the term of this Agreement. PFPC Trust will not be responsible
for any assets until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon Written
Instructions, shall open and maintain a separate account for each
separate Portfolio of the Fund (each an "Account") and shall maintain
in the Account of a particular Portfolio all cash and other assets
received from or for the Fund specifically designated to such Account.
PFPC Trust shall make cash payments from or for the Account of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio, PFPC
Trust, PFPC Trust's nominee or a sub-custodian or nominee
thereof as provided in sub-section (j) and for which PFPC
Trust has received a copy of the broker's or dealer's
confirmation or payee's invoice, as appropriate;
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(ii) purchase or redemption of Shares of the Fund delivered to PFPC
Trust;
(iii) payment of, subject to Written Instructions, interest, taxes
(provided that tax which PFPC Trust considers is required to
be deducted or withheld "at source" will be governed by
Section 14(h)(iii)(B) of this Agreement), administration,
accounting, distribution, advisory and management fees which
are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the shareholders, of an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in cash
by the transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PFPC Trust may arrange for the
direct payment of cash dividends and distributions to
shareholders in accordance with procedures mutually agreed
upon from time to time by and among the Fund, PFPC Trust and
the Fund's transfer agent;
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to PFPC
Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry
System or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon Written
Instructions or otherwise pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose
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of any such securities or investment, except upon the express
terms of this Agreement or upon Written Instructions
authorizing the transaction. In no case may any member of the
Fund's Board of Trustees, or any officer, employee or agent of
the Fund withdraw any securities.
At PFPC Trust's own expense and for its own convenience, PFPC
Trust may enter into sub-custodian agreements with other banks
or trust companies to perform duties described in this
sub-section (c) with respect to domestic assets. Such bank or
trust company shall have aggregate capital, surplus and
undivided profits, according to its last published report, of
at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of PFPC Trust, or at least twenty
million dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of PFPC Trust. In addition, such
bank or trust company must be qualified to act as custodian
and agree to comply with the relevant provisions of applicable
rules and regulations. Any such arrangement will not be
entered into without prior written notice to the Fund (or as
otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign
assets. Any such arrangement will not be entered into without
prior written notice to the Fund (or as otherwise provided in
the 1940 Act).
Sub-custodians utilized by PFPC Trust may be subsidiaries or
affiliates of PFPC Trust, and such entities will be
compensated for their services at such rates as are agreed
between the entity and PFPC Trust. PFPC Trust shall remain
responsible for the acts and omissions of any sub-custodian
chosen by PFPC Trust under the terms of this sub-section (c)
to the same extent that PFPC Trust is responsible for its own
acts and omissions under this Agreement.
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions
or Written Instructions and not otherwise, PFPC Trust shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby
the authority of a Portfolio as owner of any securities may be
exercised;
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(iii) deliver any securities to the issuer thereof, or its agent,
when such securities are called, redeemed, retired or
otherwise become payable at the option of the holder; provided
that, in any such case, the cash or other consideration is to
be delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer,
merger, consolidation or recapitalization of any corporation,
or the exercise of any conversion privilege;
(v) deliver any securities held for a Portfolio to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be stated in
said Oral Instructions or Written Instructions to be for the
purpose of effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Fund;
(vii) release securities belonging to a Portfolio to any bank or
trust company for the purpose of a pledge or hypothecation to
secure any loan incurred by the Fund on behalf of that
Portfolio; provided, however, that securities shall be
released only upon payment to PFPC Trust of the monies
borrowed, except that in cases where additional collateral is
required to secure a borrowing already made subject to proper
prior authorization, further securities may be released for
that purpose; and repay such loan upon redelivery to it of the
securities pledged or hypothecated therefor and upon surrender
of the note or notes evidencing the loan;
(viii) release and deliver securities owned by a Portfolio in
connection with any repurchase agreement entered into by the
Fund on behalf of that Portfolio, but only on receipt of
payment therefor; and pay out monies of the Fund in connection
with such repurchase agreements, but only upon the delivery of
the securities;
(ix) release and deliver or exchange securities owned by the Fund
in connection with any conversion of such securities, pursuant
to their terms, into other securities;
(x) release and deliver securities to a broker in connection with
the broker's custody of margin collateral relating to futures
and options transactions;
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(xi) release and deliver securities owned by the Fund for the
purpose of redeeming in kind shares of the Fund upon delivery
thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the Fund
for other purposes.
PFPC Trust must also receive a certified resolution describing
the nature of the corporate purpose and the name and address
of the person(s) to whom delivery shall be made when such
action is pursuant to sub-paragraph d(xii).
(e) USE OF BOOK-ENTRY SYSTEM OR OTHER DEPOSITORY. PFPC Trust will deposit
in Book-Entry Systems and other depositories all securities belonging
to the Portfolios eligible for deposit therein and will utilize
Book-Entry Systems and other depositories to the extent possible in
connection with settlements of purchases and sales of securities by
the Portfolios, and deliveries and returns of securities loaned,
subject to repurchase agreements or used as collateral in connection
with borrowings. PFPC Trust shall continue to perform such duties
until it receives Written Instructions or Oral Instructions
authorizing contrary actions. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust's use of a Book-Entry System
shall comply with the requirements of Rule 17f-4 under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of each Portfolio which are
maintained in a Book-Entry System or another depository, the
records of PFPC Trust shall identify by book-entry or
otherwise those securities as belonging to each Portfolio.
(ii) Assets of each Portfolio deposited in a Book-Entry System or
another depository will (to the extent consistent with
applicable law and standard practice) at all times be
segregated from any assets and cash controlled by
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PFPC Trust in other than a fiduciary or custodian capacity but
may be commingled with other assets held in such capacities.
PFPC Trust will provide the Fund with such reports on its own system
of internal control as the Fund may reasonably request from time to
time.
(f) REGISTRATION OF SECURITIES. All securities held for a Portfolio which
are issued or issuable only in bearer form, except such securities
maintained in the Book-Entry System or in another depository, shall be
held by PFPC Trust in bearer form; all other securities maintained for
a Portfolio may be registered in the name of the Fund on behalf of
that Portfolio, PFPC Trust, a Book-Entry System, another depository, a
sub-custodian, or any duly appointed nominee of the Fund, PFPC Trust,
Book-Entry System, depository or sub-custodian. The Fund reserves the
right to instruct PFPC Trust as to the method of registration and
safekeeping of the securities of the Fund. The Fund agrees to furnish
to PFPC Trust appropriate instruments to enable PFPC Trust to maintain
or deliver in proper form for transfer, or to register in the name of
its nominee or in the name of the Book-Entry System or in the name of
another appropriate entity, any securities which it may maintain for
the Accounts. With respect to uncertificated securities which are
registered in the name of the Fund or a Portfolio (or a nominee
thereof), PFPC Trust will reflect such securities on its records based
upon the holdings information provided to it by the issuer of such
securities, but notwithstanding anything in this Agreement to the
contrary PFPC Trust shall not be obligated to safekeep such securities
or to perform other duties with respect to such securities other than
to make payment for the purchase of such securities upon receipt of
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Oral or Written Instructions, accept in sale proceeds received by PFPC
Trust upon the sale of such securities of which PFPC Trust is informed
pursuant to Oral or Written Instructions, and accept in other
distributions received by PFPC Trust with respect to such securities
or reflect on its records any reinvested distributions with respect to
such securities of which it is informed by the issuer of the
securities.
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its nominee shall vote
any of the securities held pursuant to this Agreement by or for the
account of a Portfolio, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of another
entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as
custodian of the Property to the registered holder of such securities.
If the registered holder is not the Fund on behalf of a Portfolio,
then Written Instructions or Oral Instructions must designate the
person who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. Notwithstanding anything in
this Agreement requiring instructions in order to take a particular
action, in the absence of a contrary Written Instruction, PFPC Trust
is authorized to take the following actions without the need for
instructions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each Portfolio,
all income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or
to be included in the Property, and, in addition,
promptly advise each Portfolio of such receipt and credit
such income to each Portfolio's custodian account;
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(B) endorse and deposit for collection, in the name of the
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of each Portfolio all
securities received as a distribution on the Portfolio's
securities as a result of a stock dividend, share
split-up or reorganization, recapitalization,
readjustment or other rearrangement or distribution of
rights or similar securities issued with respect to any
securities belonging to a Portfolio and held by PFPC
Trust hereunder;
(D) present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed,
retired or otherwise become payable (on a mandatory
basis) on the date such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such income
and other payments and the endorsement for collection of
checks, drafts, and other negotiable instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) PFPC Trust is authorized to deliver or cause to be
delivered Property against payment or other consideration
or written receipt therefor in the following cases:
(1) for examination by a broker or dealer selling for
the account of a Portfolio in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the Fund
on behalf of a Portfolio or PFPC Trust or a
sub-custodian or a nominee of one of the foregoing,
or for exchange of securities for a different number
of bonds, certificates, or other evidence,
representing the same aggregate face amount or
number of units bearing the same interest rate,
maturity date and call provisions, if any; provided
that, in any such case, the new securities are to be
delivered to PFPC Trust.
(B) PFPC Trust shall:
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(1) pay all income items held by it which call for
payment upon presentation and hold the cash received
by it upon such payment for the account of each
Portfolio;
(2) collect interest and cash dividends received, with
notice to the Fund, to the account of each
Portfolio;
(3) hold for the account of each Portfolio all stock
dividends, rights and similar securities issued with
respect to any securities held by PFPC Trust; and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of the Fund all necessary ownership
certificates required by a national governmental
taxing authority or under the laws of any U.S. state
now or hereafter in effect, inserting the Fund's
name, on behalf of a Portfolio, on such certificate
as the owner of the securities covered thereby, to
the extent it may lawfully do so.
(iii) OTHER MATTERS.
(A) Subject to receipt of such documentation and information
as PFPC Trust may request, PFPC Trust will, in such
jurisdictions as PFPC Trust may agree from time to time,
seek to reclaim or obtain a reduction with respect to any
withholdings or other taxes relating to assets maintained
hereunder (provided that PFPC Trust will not be liable
for failure to obtain any particular relief in a
particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or withhold any sum in
respect of tax which PFPC Trust considers is required to
be deducted or withheld "at source" by any relevant law
or practice.
(i) SEGREGATED ACCOUNTS.
(i) PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of each Portfolio. Such accounts may
be used to transfer cash and securities, including securities
in a Book-Entry System or other depository:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and
any releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies;
and
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(B) upon receipt of Written Instructions, for other purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding Shares
through XXX accounts, in accordance with the Fund's
prospectuses, the Internal Revenue Code of 1986, as amended
(including regulations promulgated thereunder), and with such
other procedures as are mutually agreed upon from time to time
by and among the Fund, PFPC Trust and the Fund's transfer
agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for a Portfolio (or otherwise in
accordance with standard market practice) pay out of the
monies held for the account of the Portfolio the total amount
payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the
total amount payable as set forth in such Oral Instructions or
Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
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(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made;
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding anything to the contrary in this Agreement,
PFPC Trust may accept payment in such form as is consistent with standard
industry practice and may deliver assets and arrange for payment in
accordance with standard market practice.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each Portfolio, listing each
portfolio security belonging to each Portfolio (with the
corresponding security identification number) held at the
end of such month and stating the cash balance of each
Portfolio at the end of such month.
(C) the reports required to be furnished to the Fund pursuant
to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from time to
time between the Fund and PFPC Trust.
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(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. PFPC Trust shall be under no other obligation to
inform the Fund as to such actions or events. For
clarification, upon termination of this Agreement PFPC Trust
shall have no responsibility to transmit such material or to
inform the Fund or any other person of such actions or events.
(m) CREDITING OF ACCOUNTS. PFPC Trust may in its sole discretion credit an
Account with respect to income, dividends, distributions, coupons,
option premiums, other payments or similar items prior to PFPC Trust's
actual receipt thereof, and in addition PFPC Trust may in its sole
discretion credit or debit the assets in an Account on a contractual
settlement date with respect to any sale, exchange or purchase
applicable to the Account; provided that nothing herein or otherwise
shall require PFPC Trust to make any advances or to credit any amounts
until PFPC Trust's actual receipt thereof. If PFPC Trust credits an
Account with respect to (a) income, dividends, distributions, coupons,
option premiums, other payments or similar items on a contractual
payment date or otherwise in advance of PFPC Trust's actual receipt of
the amount due, (b) the proceeds of any sale or other disposition of
assets on the contractual settlement date or otherwise in advance of
PFPC Trust's actual receipt of the amount due or (c) provisional
crediting of any amounts due, and (i) PFPC Trust is subsequently
unable to collect full and final payment for the amounts so credited
within a reasonable time period
24
using reasonable efforts or (ii) pursuant to standard industry
practice, law or regulation PFPC Trust is required to repay to a third
party such amounts so credited, or if any Property has been
incorrectly credited, PFPC Trust shall have the absolute right in its
sole discretion without demand to reverse any such credit or payment,
to debit or deduct the amount of such credit or payment from the
Account, and to otherwise pursue recovery of any such amounts so
credited from the Fund. The Fund hereby grants to PFPC Trust and to
each sub-custodian utilized by PFPC Trust in connection with providing
services to the Fund a first priority contractual possessory security
interest in and a right of setoff against the assets maintained in an
Account hereunder in the amount necessary to secure the return and
payment to PFPC Trust and to each such sub-custodian of any advance or
credit made by PFPC Trust and/or by such sub-custodian (including
charges related thereto) to such Account. Notwithstanding anything in
this Agreement to the contrary, PFPC Trust shall be entitled to assign
any rights it has under this sub-section (m) to any sub-custodian
utilized by PFPC Trust in connection with providing services to the
Fund which sub-custodian makes any credits or advances with respect to
the Fund.
(n) COLLECTIONS. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by PFPC Trust) shall be at the sole risk of the
Fund. If payment is not received by PFPC Trust within a reasonable
time after proper demands have been made, PFPC Trust shall notify the
Fund in writing, including copies of all demand letters, any written
responses and memoranda of all oral responses and shall await
25
instructions from the Fund. PFPC Trust shall not be obliged to take
legal action for collection unless and until reasonably indemnified to
its satisfaction. PFPC Trust shall also notify the Fund as soon as
reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Fund with periodic
status reports of such income collected after a reasonable time.
(o) EXCESS CASH SWEEP. PFPC Trust will, consistent with applicable law,
sweep any net excess cash balances daily into an investment vehicle or
other instrument designated in Written Instructions, so long as the
investment vehicle or instrument is acceptable to PFPC Trust, subject
to a fee, paid to PFPC Trust for such service, to be agreed between
the parties. Such investment vehicle or instrument may be offered by
an affiliate of PFPC Trust or by a PFPC Trust client and PFPC Trust
may receive compensation therefrom.
(p) FOREIGN EXCHANGE. PFPC Trust and/or sub-custodians may enter into or
arrange foreign exchange transactions (at such rates as they may
consider appropriate) in order to facilitate transactions under this
Agreement, and such entities and/or their affiliates may receive
compensation in connection with such foreign exchange transactions.
15. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above and
unless terminated pursuant to its terms shall continue for a period of
three (3) years (the "Initial Term"). Upon the expiration of the
Initial Term, this Agreement will automatically renew for successive
terms of one (1) years (the "Renewal Terms"). Either party may
terminate this Agreement effective at the end of the Initial Term,
26
or any Renewal Term by providing written notice to the other party of
its intent not to renew. Notice of termination must be received not
less than thirty (30) days prior to the expiration of the Initial Term
or the then current Renewal Term, as applicable.
(b) In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the shareholders of the Fund to
dissolve or to function without a custodian of its cash, securities or
other property), PFPC Trust shall not deliver cash, securities or
other property of the Series to the Fund. It may deliver them to a
bank or trust company of PFPC Trust's choice, having aggregate
capital, surplus and undivided profits, as shown by its last published
report, of not less than twenty million dollars ($20,000,000), as a
custodian for the Fund to be held under terms similar to those of this
Agreement. PFPC Trust shall not be required to make any delivery or
payment of assets upon termination until full payment shall have been
made to PFPC Trust of all of its fees, compensation, costs and
expenses (including without limitation fees and expenses associated
with deconversion or conversion to another service provider and other
trailing expenses incurred by PFPC Trust). PFPC Trust shall have a
security interest in and shall have a right of setoff against the
Property as security for the payment of such fees, compensation, costs
and expenses.
(c) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof to
the Defaulting Party, and if such material breach shall not have been
remedied within thirty (30) days after such written notice is
27
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any
other rights it might have under this Agreement or otherwise against
the Defaulting Party.
16. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxx
Xxxxxxxx (or such other address as PFPC Trust may inform the Fund in
writing); (b) if to the Fund, to Xxxxxxx Xxxxx, Roxbury Capital Management,
LLC, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxxxx, XX 00000 with a copy
to Xxxxxxx X. Xxxxxx, Esquire, Drinker Xxxxxx & Xxxxx LLP, One Xxxxx
Square, 18th and Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000-0000; or (c) if to
neither of the foregoing, at such other address as shall have been given by
like notice to the sender of any such notice or other communication by the
other party. If notice is sent by confirming electronic delivery, hand or
facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to
have been given five days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
17. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate its
duties hereunder to any affiliate of PFPC Trust or of The PNC Financial
Services Group, Inc., provided that PFPC Trust gives the Fund thirty (30)
days' prior written notice of such assignment or delegation.
28
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
20. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof (including
the interim custody agreement between the parties), provided that the
parties may embody in one or more separate documents their agreement,
if any, with respect to delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, PFPC Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. PFPC Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Trust hereunder without the prior written
approval of PFPC Trust, which approval shall not be unreasonably
withheld or delayed.
29
(d) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) INFORMATION. The Fund will provide such information and documentation
as PFPC Trust may reasonably request in connection with services
provided by PFPC Trust to the Fund.
(f) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(g) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) TRUSTEE LIABILITY. The Fund and PFPC Trust agree that the obligations
of the Fund under this Agreement shall not be binding upon any of the
Trustees, shareholders, nominees, officers, employees or agents,
whether past, present or future, of the Fund individually, but are
binding only upon the assets of the Fund or applicable Portfolio, as
provided in the Fund's agreement and declaration of
30
trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Fund, and signed by an authorized
officer of the Fund, acting as such, and neither such authorization by
the Trustees nor such execution by such officer shall be deemed to
have been made by them or any shareholder of the Fund individually or
to impose any liability on any of them or any shareholder of the Fund
personally, but shall bind only the assets and property of the Fund or
applicable Portfolio as provided in the Fund's agreement and
declaration of trust.
(k) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify, and
record certain information that identifies each person who initially
opens an account with that financial institution on or after October
1, 2003. Consistent with this requirement, PFPC Trust may request (or
may have already requested) the Fund's name, address and taxpayer
identification number or other government-issued identification
number, and, if such party is a natural person, that party's date of
birth. PFPC Trust may also ask (and may have already asked) for
additional identifying information, and PFPC Trust may take steps (and
may have already taken steps) to verify the authenticity and accuracy
of these data elements.
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By:
Title:
THE ROXBURY FUNDS
By:
Title:
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