Exhibit 9(e)
PEGASUS FUNDS
Agency Agreement
THIS AGENCY AGREEMENT made as of the 11th day of March, 1996, by and
between Pegasus Funds (the "Trust"), a registered investment company under
the Investment Company Act of 1940 (the "1940 Act"), and NBD Bank, a
state-chartered bank incorporated under the laws of Michigan, with its
principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx ("NBD").
WHEREAS, NBD currently provides administrative and record-keeping
services for certain employee benefit plans, profit sharing plans and
retirement plans, and may in the future provide such services for additional
plans (collectively, the "Plans") which hold shares of certain portfolios of
the Trust (the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
Section 1. Appointment of NBD. The Trust hereby appoints NBD
as an agent for the Trust to render the services herein set forth for the
compensation herein provided, and NBD accepts such appointment.
Section 2. Duties of the Parties.
2.01 NBD shall perform the following services:
(a) Receive from the Plans orders for the
purchase of authorized shares of beneficial interest of the Funds
(the "Shares") by the close of regular trading on the New York Stock
Exchange (the "Close of Trading") each business day that the New York
Stock Exchange is open for business ("Business Day"), transmit such
orders to the transfer agent of the Trust (the "Transfer Agent") for
acceptance on such Business Day and promptly deliver or instruct the
Plans (or the Plans' Trustee(s) as the case may be) to deliver
payment and appropriate documentation therefor to Transfer Agent for
acceptance;
(b) Receive from the Plans by the close of
Trading each Business Day redemption requests and redemption
directions, transmit such requests and directions to the Transfer
Agent and deliver appropriate documentation therefor to Transfer
Agent, in each case for acceptance on such Business Day; and
(c) As instructed, maintain adequate records
related to, and advise Transfer Agent as to, the foregoing. To the
extent required under the 1940 Act and rules thereunder, NBD agrees
that such records maintained by it will be preserved, maintained and
made available in accordance with the provisions of the 1940 Act and
rules thereunder, and copies or, if required, originals, will be
surrendered promptly. Subject to the foregoing, records surrendered
hereunder shall be in machine readable or optical disk form. This
provision shall survive the termination of this Agreement.
2.02 NBD shall maintain adequate offices,
personnel and computer and other equipment to perform the services
contemplated by this Agreement. NBD shall notify the Trust promptly in the
event that it becomes unable for any reason to perform the services
contemplated by, or any other of its obligations under, this Agreement.
2.03 The parties hereto shall take all steps
necessary to ensure that the arrangements provided for in this Agreement are
properly disclosed to the Plans.
2.04 In accordance with procedures established
from time to time by agreement of the parties hereto, the Trust shall
instruct the Transfer Agent to furnish to NBD, for each Fund, no later than
6:30 P.M. Eastern Time on each Business Day as appropriate:
(a) Net asset value information as of the
Close of Trading each Business Day when such information is
used for crediting accounts; and
(b) Dividend and capital gains distribution
information, as it arises, when such information is used for
crediting accounts; and
(c) Daily accrual for interest rate factor
(mil rate) information with respect to Funds which declare dividends
daily, when such information is used for crediting accounts.
2.05 Orders derived from, and in amounts equal
to, purchase and redemption requests received by NBD prior to the Close of
Trading on any Business Day ("Day 1") shall be transmitted by 9:30 a.m.
(Eastern Time) on the next Business Day. Such trades will be effected at the
net asset value of each Fund's shares calculated as of the Close of Trading
on Day 1 subject to the terms of such Fund's prospectus.
2.06 NBD agrees that all books, records, information
and data pertaining to the business of the Transfer
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Agent which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential and shall not be
voluntarily disclosed to any other person, except as may be required by law.
2.07 NBD shall maintain or provide for redundant
facilities and shall maintain or provide for backup files of its records
maintained hereunder and shall store such back-up files in a secure
off-premises location, so that in the event of a power failure or other
interruption of whatever cause at the location of its records such records
are maintained intact and transactions can be processed at another location.
2.08 The parties hereto shall furnish to each
other such information as may reasonably be requested (including, without
limitation, periodic certifications confirming the provision of the services
described herein), and will otherwise cooperate with each other (including
without limitation any auditors designated by the Trust) in connection with
reports to the Trust's Board of Trustees concerning this Agreement and the
monies paid or payable pursuant hereto, as well as any other reports or
filings that may be required by law.
2.09 The parties hereto shall comply with federal
and state securities laws and regulations thereunder in connection with their
responsibilities under this Agreement.
2.10 In accordance with the procedures established from
time to time by agreement of the parties hereto, the Trust shall cause the
Transfer Agent to promptly furnish to NBD in the frequency requested, for
each Fund:
(a) copies of prospectuses, financial
statements, reports or other materials relating to each Fund, and
updates of such materials, in the quantity requested by NBD as such
updates become available; and
(b) performance data for each Fund,
including without limitation total return and current yield
information computed in accordance with applicable regulations and
other performance information as NBD may reasonably request.
2.11 Purchases and sales of the Funds are subject
to the terms of the Funds' prospectuses.
2.12 The Trust hereby authorizes NBD, for purposes of
subsection 2.10 concerning the transmission of performance data, to utilize
Lipper Analytical Services in reporting the performance of the Fund(s).
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Section 3. Compensation. For the services which NBD will render to
the Trust under this Agreement, the Trust will pay to NBD a fee on a monthly
basis, at the rate or rates as set forth in Schedule A.
Section 4. Representations and Warranties.
4.01 Each party represents and warrants to the
other party that:
(a) It is duly organized, validly existing
and in good standing under the laws of its state of
organization;
(b) It has legal power and authority to
carry on its business, and is registered or licensed as required, in
each jurisdiction where it conducts its business and the
registrations are and will remain in full force and effect during the
term of this Agreement;
(c) It is empowered by its charter and
bylaws and under applicable law to enter into and perform
this Agreement; and
(d) All requisite actions have been taken to
authorize it to enter into and to perform this Agreement.
4.02 In addition, NBD represents and warrants to
the Trust that it maintains and knows of no reason why it cannot or will not
during the term hereof maintain adequate offices, personnel and computer and
other equipment to perform the services contemplated by this Agreement.
4.03 In addition, the Trust represents and
warrants that it is registered as an investment company under the
1940 Act.
Section 5. Indemnification.
5.01 Each party (an "Indemnitor") agrees to
indemnify and hold harmless the other party, their respective trustees or
directors, officers, agents, employees and each person, if any, who controls
them within the meaning of the Securities Act of 1933 ("1933 Act")
(collectively, "Indemnified Parties"), against any losses, claims, damages,
liabilities or expenses (including any legal or other expenses reasonably
incurred by them in connection with investigating or defending such loss,
claim or action) to which an Indemnified Party may become subject insofar as
those losses, claims, damages, liabilities or expenses (or actions in respect
thereof), arise out of or are based upon (a) any negligent act or omission by
an Indemnitor or its agents relating to the performance of its
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obligations under this Agreement; (b) any breach by the Indemnitor of its
representations or warranties contained in this Agreement; (c) the
Indemnitor's failure to comply with any of the terms of this Agreement; or
(d) the acceptance by any Indemnified Party of any transaction or account
maintenance information from the Indemnitor with respect to the Plans or
their assets. Each party represents and warrants that at all times it has
sufficient financial resources, whether through a fidelity bond or otherwise,
to meet all of its indemnification obligations arising under this Agreement.
Notwithstanding the foregoing, there shall be no
indemnification obligation between the parties arising out of the failure of
any Plan to provide good funds for the settlement of any transaction
authorized by a Plan.
5.02 In order that the indemnification provisions
contained herein shall apply, upon the assertion of a claim or loss for which
either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion or
loss, and shall keep the other advised with respect to all developments
concerning such claim. An Indemnitor shall have the option to assume the
defense of a claim at its expense, or to participate at its expense with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in
any case in which the other party may be required to indemnify it except with
the other party's prior written consent.
5.03 The obligations of the parties hereto under
this Section 5 shall survive the termination of this Agreement.
Section 6. Acknowledgements. NBD acknowledges that the Trust, as a
registered investment company under the 1940 Act, is subject to the
provisions of the 1940 Act and regulations thereunder, and that the offer and
sale of its shares are subject to the provisions of federal and state laws
and regulations applicable to the offer and sale of securities. The Trust
acknowledges that NBD is not responsible for the Trust's compliance with such
laws and regulations.
Section 7. Duration and Termination of Agreement. This Agreement
will become effective as of the date hereof and may be terminated by either
party upon ninety (90) days written notice to the other party. This Agreement
shall terminate immediately upon written notice to the other party in the
event that:
(a) NBD becomes unable for any reason to perform the
services contemplated by this Agreement;
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(b) The Trust ceases to offer investment alternatives
under the Plans; or
(c) At any time, the authorizations, licenses,
qualifications or registrations required to be maintained by NBD in
connection with the performance of its duties hereunder shall lapse
or cease to remain in full force and effect.
Upon termination of this Agreement, each party shall return to the other
party all copies of confidential or proprietary materials or information
received from such other party hereunder other than materials or information
required to be retained by such party under applicable law or regulations.
The obligations of the parties under this section shall survive the
termination of this Agreement.
Section 8. Assignment. Neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by either party without
the written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective permitted
successors and assigns.
Section 9. Notices. Notices hereunder shall be in writing, shall be
delivered personally, sent by certified mail, return receipt requested, or
sent by facsimile machine in accordance with procedures established by
agreement of the parties hereto, and shall be addressed to a party either at
his address below or at a changed address specified by it in a notice to the
other party hereto:
Pegasus Funds
c/o First Chicago Investment Management Company
0 Xxxxx Xxxxxxxx Xxxxx
00 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
NBD Bank
000 Xxxxx Xxxxx
Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Section 10. Amendment. This Agreement may be amended or modified
only by a written agreement executed by both parties.
Section 11. Trust Liability. The names "Pegasus Funds" and "Trustees
of Pegasus Funds" refer, respectively, to the trust created and the trustees,
as trustees but not individually or personally, acting from time to time
under a Declaration of Trust dated April 21, 1987, as amended, which is
hereby referred to and
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a copy of which is on file at the office of the State Secretary of the
Commonwealth of Massachusetts and at the principal office of the Trust. The
obligations of the Trust entered into in the name or on behalf thereof by any
of the trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the trustees, shareholders
or representatives of the Trust personally, but bind only the trust property,
and all persons dealing with any portfolio of the Trust must look solely to
the trust property belonging to such portfolio for the enforcement of any
claims against the Trust.
Section 12. Governing Law. This Agreement shall be constructed and
the provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
Section 13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written. This Agreement
is intended to set forth the rights, duties and responsibilities between the
Trust and NBD with respect to the matters covered herein. Nothing contained
in the Agreement is intended to convey rights to any third parties such as
Plans, Plan participants or the Transfer Agent.
Section 14. Headings. Paragraphs headings in this Agreement are
included for convenience or reference only and are not to be used to construe
or interpret this Agreement.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
NBD BANK
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
PEGASUS FUNDS
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
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Schedule A
Fees
The fees referred to in Section 3 of this Agreement shall be an
amount equal to 0.25% of the average daily net asset value of the shares of
each Fund that are held on behalf of the Plans.
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