FUND ACCOUNTING AGREEMENT
AGREEMENT made this 1st day of April, 2002 between THE VICTORY PORTFOLIOS
(the "Trust"), a Delaware business trust having its principal place of business
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, on behalf of each investment
portfolio of the Trust listed on Schedule A, and such additional investment
portfolios as are hereafter created (individually referred to herein as a "Fund"
and collectively, as the "Funds"), individually and not jointly, and BISYS FUND
SERVICES OHIO, INC. ("BISYS"), a corporation organized under the laws of the
State of Ohio and having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform certain fund accounting
services for each Fund; and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS FUND ACCOUNTANT. BISYS will keep and maintain the following
books and records of each Fund pursuant to Rule 31a-1 under the Investment
Company Act of 1940, as amended (the "Rule"):
a. Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and
disbursements of cash and all other debits and credits, as
required by subsection (b)(1) of the Rule;
b. General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including
interest accrued and interest received, as required by
subsection (b)(2)(i) of the Rule;
c. Separate ledger accounts required by subsection (b)(2)(ii) and
(iii) of the Rule; and
d. A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the
Rule.
All such books and records shall be the property of the Trust, and BISYS
agrees to make such books and records available for inspection by the Trust or
by the Securities and Exchange commission at reasonable times and otherwise to
keep confidential all records and other information relative to the Trust;
except when requested to divulge such information by duly-constituted
authorities or court process, or when requested by the Trust.
In addition to the maintenance of the books and records specified above,
BISYS shall perform the following account services daily for each Fund:
a. Calculate the net asset value per Share utilizing prices
obtained from the sources described below;
b. Obtain security prices from independent pricing services, or
if such quotes are unavailable, then obtain such prices from
each Fund's investment adviser or its designee, as approved by
the Trust's Board of Trustees; c. Verify and reconcile with
the Funds' custodian all daily trade activity;
d. Compute, as appropriate, each Fund's net income and capital
gains, dividend payables, dividend factors, 7-day yields,
7-day effective yields, 30-day yields, and weighted average
portfolio maturity;
e. Review daily the net asset value calculation and dividend
factor (if any) for each Fund prior to release to
shareholders, check and confirm the net asset values and
dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ;
f. Calculate the dividend and capital gain distribution, if any;
g. Calculate the yield;
h. Provide the following reports:
(i) a current security position report;
(ii) a summary report of transactions and pending maturities
(including the principal, cost, and accrued interest on
each portfolio security in maturity date order); and
(iii) a current cash position report (including cash available
from portfolio sales and maturities and sales of a
Fund's Shares less cash needed for redemptions and
settlement of portfolio purchases);
i. Such other similar services with respect to a Fund as may be
reasonable requested by the Trust.
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2. SUBCONTRACTING.
BISYS may, at its expense, subcontract with any entity or person
acceptable to the Trust in writing concerning the provision of the services
contemplated hereunder; provided, however, that BISYS shall not be relieved of
any of its obligations under this Agreement by the appointment of such
subcontractor and provided further, that BISYS shall be responsible, to the
extent provided in Section 7 hereof, for all acts of such subcontractor as if
such acts were its own.
3. COMPENSATION.
The Trust shall pay BISYS for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth in,
Schedule B hereto, as such Schedule may be amended from time to time.
4. REIMBURSEMENT OF EXPENSES AND MISCELLANEOUS SERVICE FEES.
a. In addition to paying BISYS the fees described in the Fee
Agreement, the Trust agrees to reimburse BISYS for its
out-of-pocket expenses in providing services hereunder,
including without limitation the following:
(i) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
the Trust;
(ii) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred by BISYS in communication with the Trust, the
Trust's investment adviser or custodian, dealers or
others as required for BISYS to perform the services to
be provided hereunder;
(iii) The cost of microfilm or microfiche of records or other
materials;
(iv) All systems-related expenses associated with the
provision of special reports and services pursuant to
Section 1(e) herein;
(v) Any expenses BISYS shall incur at the written direction
of the Adviser or an officer of the Trust thereunto duly
authorized; and
(vi) Any additional expenses reasonably incurred by BISYS in
the performance of its duties and obligations under this
Agreement.
(b) In addition, BISYS shall be entitled to receive the following
amounts:
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i. Systems development fees billed at an hourly rate of
$150 per hour, as approved by the Adviser or the Trust;
ii. Ad hoc reporting fees billed at an agreed upon rate; and
iii. Charges for the pricing information obtained from third
party vendors for use in pricing the securities of each
Fund's portfolio pursuant to Section 1 of this
Agreement, which shall not exceed the amounts that would
be incurred if the Fund were to obtain the information
directly from the relevant vendor or vendors.
5. EFFECTIVE DATE. This Agreement shall become effective with respect to a
Fund as of April 1, 2002 (the "Effective Date").
6. DURATION AND TERMINATION. This Agreement shall become effective on the
Effective Date and, unless earlier terminated as provided herein, shall continue
as to a particular Fund until March 31, 2004 (the "Initial Term"). Thereafter,
if not terminated, this Agreement shall continue automatically as to a
particular Fund for successive terms of two years ("Rollover Periods"); provided
that such continuance is specifically approved by a vote of a majority of those
members of the Board of Trustees of the Trust who are not parties to this
Agreement or "interested persons" of any such party, and by the vote of the
Trust's Board of Trustees or a majority of the outstanding voting securities of
such Fund. This Agreement may be terminated without penalty (a) by provision of
a notice of nonrenewal in the manner set forth below, (b) upon mutual agreement
of the parties, or (c) for "cause" (as defined below) by the party alleging
cause upon the provision of sixty days' notice. Written notice of nonrenewal
must be provided at least sixty days prior to the end of the Initial Term or any
Rollover Period, as the case may be. After such termination, for so long as
BISYS, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due BISYS and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
BISYS shall be entitled to collect from the Trust, in addition to the
compensation described under Section 2 hereof, the amount of all of BISYS' cash
disbursements for services in connection with BISYS' activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents, or
any copies thereof. Subsequent to such termination for a reasonable fee, BISYS
will provide the Trust with reasonable access to any Trust documents or records
remaining in its possession.
For purposes of this Agreement, "cause" shall mean (a) a material breach
that has not been cured within thirty (30) days following written notice of such
breach from the non-breaching party; (b) a final, unappealable judicial,
regulatory or administrative ruling or order in which the party to be terminated
has been found guilty of criminal or unethical behavior in the conduct of its
business; or (c) financial difficulties on the part of the party to be
terminated which
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are evidenced by the authorization or commencement of, or involvement by way of
pleading, answer, consent or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as from time to time is in effect, or
any applicable law, other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors.
If, for any reason other than nonrenewal, mutual agreement of the parties
or "cause," as defined above, BISYS' services are terminated hereunder, BISYS is
replaced as fund accountant, or if a third party is added to perform all or a
part of the services provided by BISYS under this Agreement (excluding any
sub-accountant appointed by BISYS as provided in Section 2 hereof), then the
Trust shall make a one-time cash payment, in consideration of the fee structure
and services to be provided under this Agreement, and not as a penalty, to BISYS
equal to the balance due BISYS for the remainder of the then-current term of
this Agreement, assuming for purposes of calculation of the payment that such
balance shall be based upon the average amount of the Trust's daily net assets
for the twelve months prior to the date BISYS is replaced or a third party is
added.
In the event the Trust is merged into another legal entity in part or in
whole pursuant to any form of business reorganization or is liquidated in part
or in whole prior to the expiration of the then-current term of this Agreement,
the parties acknowledge and agree that the liquidated damages provision set
forth above shall be applicable in those instances in which BISYS is not
retained to provide fund accounting services consistent with this Agreement. The
one-time cash payment referenced above shall be due and payable on the day prior
to the first day in which BISYS is replaced or a third party is added.
The parties further acknowledge and agree that, in the event BISYS is
replaced, or a third party is added, as set forth above, (i) a determination of
actual damages incurred by BISYS would be extremely difficult, and (ii) the
liquidated damages provision contained herein is intended to adequately
compensate BISYS for damages incurred and is not intended to constitute any form
of penalty.
Notwithstanding the foregoing, following any such termination, in the
event that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement (or any Schedule or exhibit hereto) with the
consent of the Trust, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by the Trust upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust, in addition to the fees and disbursements provided by Sections 3 and 4
hereof, the amount of all of BISYS' reasonable cash disbursements and any cash
disbursements approved by the Trust in connection with BISYS' activities in
effecting such termination, including without limitation, the delivery to the
Trust and/or its distributor or investment adviser and/or other parties, of the
Trust's property, records, instruments and documents.
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7. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY.
BISYS shall use diligence to ensure the accuracy of all services performed
under this Agreement, but shall not be liable to the Trust for any action taken
or omitted by BISYS in the absence of bad faith, willful misfeasance, negligence
or reckless disregard by it of its obligations and duties. The duties of BISYS
shall be confirmed to those expressly set forth herein, and no implied duties
are assumed by or may be asserted against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's request, BISYS shall provide supplemental information concerning the
aspects of its disaster recovery and business continuity plan that are relevant
to the services provided hereunder. Notwithstanding the foregoing or any other
provision of this Agreement, BISYS assumes no responsibility hereunder, and
shall not be liable for, any damage, loss of data, delay or any other loss
caused by events beyond its reasonable control.
BISYS shall provide the Trust, at such times as the Trust may reasonably
require, copies of reports rendered by independent public accountants on the
internal controls and procedures of BISYS relating to the services provided by
BISYS under this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR PUNITIVE OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT
OF THE PARTIES.
8. LEGAL ADVICE.
BISYS shall notify the Trust at any time BISYS believes that it is in need
of the advice of counsel to the Trust with regard to BISYS' responsibilities and
duties pursuant to this Agreement. The Trust shall authorize counsel to the
Trust to give such advice to BISYS, however, this Agreement shall not obligate
counsel to the Trust to give such advice. BISYS may rely upon the advice of
counsel to the Trust, or any other counsel authorized by the Trust, and shall in
no event be liable to the Trust or any Fund or any shareholder or beneficial
owner of the Trust for any action reasonably taken pursuant to such advice.
9. INSTRUCTIONS.
Whenever BISYS is requested or authorized to take action hereunder, BISYS
shall be entitled to rely upon any certificate, letter or other instrument or
communication, reasonably believed by BISYS to be genuine and to have been
properly made, signed or authorized by an officer or other authorized agent of
the Trust, and shall be entitled to receive as conclusive proof of any fact or
matter required to be ascertained by it hereunder a certificate
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signed by an officer of the Trust or any other person authorized by the Trust's
Board of Trustees (hereafter referred to as the "Trustees").
As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the Prospectuses and Statement of Additional Information of
the Trust relating to the relevant Funds to the extent that such services are
described therein unless BISYS receives written instructions to the contrary in
a timely manner from the Trust.
10. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or in any way relating to BISYS'
actions taken or omissions with respect to the performance of services under
this Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by the Trust, the
investment adviser, sub-administrator, transfer agent or custodian thereof;
provided that this indemnification shall not apply to actions or omissions of
BISYS in cases of its own bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties; and further provided that prior
to confessing or settling any claim against it which may be the subject of this
indemnification, BISYS shall give the Trust written notice of and reasonable
opportunity to defend against said claim in its own name or in the name of
BISYS.
BISYS shall indemnify, defend, and hold the Company harmless from and
against any and all third party claims, actions and suits and all losses,
damages, costs, charges, reasonable counsel fees and disbursements, payments,
expenses and liabilities (including reasonable investigation expenses) resulting
directly and proximately from BISYS's willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. In order that the indemnification provisions contained herein shall
apply, however, it is understood that if in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to identify and notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder except
to the extent the indemnifying party is materially prejudiced thereby.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this
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indemnity provision. If the indemnifying party elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by it and
reasonably satisfactory to the indemnified party, whose approval shall not be
unreasonably withheld. In the event that the indemnifying party elects to assume
the defense of any suit and retain counsel, the indemnified party shall bear the
fees and expenses of any additional counsel retained by it. If the indemnifying
party does not elect to assume the defense of suit, it will reimburse the
indemnified party for the reasonable fees and expenses of any counsel retained
by the indemnified party. The indemnity and defense provisions set forth herein
shall indefinitely survive the termination of this Agreement.
11. RECORD RETENTION AND CONFIDENTIALITY.
BISYS shall keep and maintain on behalf of the Trust all books and records
which the Trust or BISYS is, or may be, required to keep and maintain pursuant
to any applicable statutes, rules and regulations, including without limitation
Rules 31a-1 and 31a-2 under the Investment Company Act of 1940, as amended (the
"1940 Act"), relating to the maintenance of books and records in connection with
the services to be provided hereunder. BISYS further agrees that all such books
and records shall be the property of the Trust and to make such books and
records available for inspection by the Trust or by the Securities and Exchange
Commission (the "Commission") at reasonable times. BISYS shall otherwise keep
confidential all books and records relating to the Trust and its shareholders,
except when (i) disclosure is required by law, (ii) BISYS is advised by counsel
that it may incur liability for failure to make a disclosure, (iii) BISYS is
requested to divulge such information by duly-constituted authorities or court
process, or (iv) BISYS is requested to make a disclosure by a shareholder or
shareholder's agent with respect to information concerning an account as to
which such shareholder has either a legal or beneficial interest or when
requested by the Trust or the dealer of record as to such account.
BISYS and the Trust will each treat as proprietary and confidential any
facts, circumstances, information, plans, projects and technical or commercial
knowledge gained about the other party through the relationship created by this
Agreement, except that information in the public domain and technical,
operational or commercial knowledge that was or is independently discovered or
developed shall not be subject to any such restriction. Each party agrees that
it will not disclose any such covered proprietary or confidential information
gained in relation to the other party to any unaffiliated third parties, except
(i) in the case of disclosure by BISYS, to a Sub-Fund accountant, or to any
third party vendor used by BISYS, provided that further dissemination
inconsistent with this provision would be prohibited, (ii) to financial or legal
advisers (in either case in such manner as to ensure no further dissemination),
(iii) with the written consent of the other party; (iv) as may be required by
law, or (v) as necessary to gain or retain regulatory approvals. The parties
further agree that a breach of this paragraph by either party would irreparably
damage the other party, and accordingly agree that each party shall be entitled
to an injunction or other equitable relief to prevent the breach or a further
breach of this provision.
12. REPORTS. BISYS will furnish to the Trust and to its properly
authorized auditors, investment advisers, examiners, distributors, dealers,
underwriters, salesmen, insurance
8
companies and others designated by the Trust in writing, such reports and at
such times as are prescribed pursuant to the terms and the conditions of this
Agreement to be provided or completed by BISYS, or as subsequently agreed upon
by the parties pursuant to an amendment hereto. The Trust agrees to examine each
such report or copy promptly and will report or cause to be reported any errors
or discrepancies therein.
13. RIGHTS OF OWNERSHIP. All computer programs and procedures developed to
perform services required to be provided by BISYS under this Agreement are the
property of BISYS. All records and other data except such computer programs and
procedures are the exclusive property of the Trust and all such other records
and data will be furnished to the Trust in appropriate form as soon as
practicable after termination of this Agreement for any reason.
14. RETURN OF RECORDS. BISYS may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
BISYS' files, records and documents created and maintained by BISYS pursuant to
this Agreement which are no longer needed by BISYS in the performance of its
services or for its legal protection. If not so turned over to the Trust, such
documents and records will be retained by BISYS for six years from the year of
creation. At the end of such six-year period, such records and documents will be
turned over to the Trust unless the Trust authorizes in writing the destruction
of such records and documents.
15. REPRESENTATIONS OF THE TRUST. The Trust certifies to BISYS that: (1)
as of the close of business on the Effective Date, each Fund that is in
existence as of the Effective Date has authorized unlimited shares, and (2) this
Agreement has been duly authorized by the Trust and, when executed and delivered
by the Trust, will constitute a legal, valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
16. REPRESENTATIONS OF BISYS. BISYS represents and warrants that: (1) the
various procedures and systems which BISYS has implemented with regard to
safeguarding from loss or damage attributable to fire, theft, or any other cause
the records, and other data of the Trust and BISYS' records, data, equipment
facilities and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes therein from time to
time as are required for the secure performance of its obligations hereunder,
and (2) this Agreement has been duly authorized by BISYS and, when executed and
delivered by BISYS, will constitute a legal, valid and binding obligation of
BISYS, enforceable against BISYS in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
17. INSURANCE. BISYS shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. BISYS shall notify the Trust should any
of its insurance coverage be canceled or reduced. Such
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notification shall include the date of change and the reasons therefor. BISYS
shall notify the Trust of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust from time to time as may be appropriate
should the total outstanding claims made by BISYS under its insurance coverage
materially impair, or threaten to impair, the adequacy of its coverage.
18. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS. The Trust has
furnished to BISYS the following (receipt of which is acknowledged):
a. Copies of the Declaration of Trust of the Trust and of
any amendments thereto, certified by the proper official
of the state in which such document has been filed.
b. Copies of the following documents:
(i) The Trust's Bylaws and any amendments thereto; and
(ii) Certified copies of resolutions of the Trustees
covering the approval of this Agreement,
authorization of BISYS to act as fund accountant,
authorization of a specified officer of the Trust
to execute and deliver this Agreement and
authorization for specified officers of the Trust
to instruct BISYS hereunder.
c. A list of all the officers of the Trust, together with
specimen signatures of those officers who are authorized
to instruct BISYS in all matters.
d. Two copies of the Prospectuses and Statements of
Additional Information for each Fund.
19. INFORMATION FURNISHED BY BISYS. BISYS shall, upon request, furnish
certified copies of corporate actions covering the following matters:
a. Approval of this Agreement, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement; and
b. Authorization of BISYS to act as fund accountant for the
Trust and to provide accounting services for the Trust.
20. AMENDMENTS TO DOCUMENTS. The Trust shall furnish BISYS written copies
of any amendments to, or changes in, any of the items referred to in Section 18
hereof forthwith upon such amendments or changes becoming effective. In
addition, the Trust agrees that no amendments will be made to the Prospectuses
or Statements of Additional Information of the Trust which might have the effect
of changing the procedures employed by BISYS in providing the services agreed to
hereunder or which amendment might affect the duties of BISYS hereunder unless
the Trust first obtains BISYS' approval of such amendments or changes.
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21. RELIANCE ON AMENDMENTS. BISYS may rely on any amendments to or changes
in any of the documents and other items to be provided by the Trust pursuant to
Sections 18 and 20 of this Agreement and the Trust hereby indemnifies and holds
harmless BISYS from and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, counsel fees and other
expenses of every nature and character which may result from actions or
omissions on the part of BISYS in reasonable reliance upon such amendments
and/or changes. Although BISYS is authorized to rely on the above-mentioned
amendments to and changes in the documents and other items to be provided
pursuant to Sections 18 and 20 hereof, in the event the same relate to services
provided by BISYS hereunder, BISYS shall have no liability for failure to comply
with or take any action in conformity with such amendments or changes unless the
Trust first obtains BISYS' written consent to and approval of such amendments or
changes.
22. COMPLIANCE WITH LAW. Except for the obligations of BISYS set forth in
Section 11 hereof, the Trust assumes full responsibility for the preparation,
contents and distribution of each prospectus of the Trust as to compliance with
all applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. BISYS shall have no obligation to
take cognizance of any laws relating to the sale of the Trust's shares. The
Trust represents and warrants that no shares of the Trust will be offered to the
public until the Trust's registration statement under the Securities Act and the
1940 Act has been declared or becomes effective.
23. ACTIVITIES OF BISYS. The services of BISYS rendered to the Trust
hereunder are not to be deemed to be exclusive. BISYS is free to render such
services to others and to have other businesses and interests. It is understood
that Trustees, officers, employees and Shareholders of the Trust are or may be
or become interested in BISYS, as officers, employees or otherwise and that
partners, officers and employees of BISYS and its counsel are or may be or
become similarly interested in the Trust, and that BISYS may be or become
interested in the Trust as a shareholder or otherwise.
24. NOTICES. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to the party required to be served
with such notice, at the following address: if to the Trust, at c/o Victory
Capital Management Inc., Investment Products Group, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, Attn: Xxxxxxxx X. Xxxxxx, President, with a copy to Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxx X.
Xxxxx, Esquire; and if to BISYS, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000,
Attn: President; or at such other address as such party may from time to time
specify in writing to the other party pursuant to this Section.
25. HEADINGS. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
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26. ASSIGNMENT. This Agreement and the rights and duties hereunder shall
not be assignable with respect to a Fund by either of the parties hereto except
by the specific written consent of the other party. This Section 25 shall not
limit or in any way affect BISYS' right to appoint a Sub-fund accountant
pursuant to Section 2 hereof. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
27. GOVERNING LAW. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of the State of Ohio.
28. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. A copy of
the Trust's Certificate of Trust is on file with the Secretary of the State of
Delaware, and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Trust as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees or
Shareholders individually but are binding only upon the assets and property of
the Trust.
29. PRIVACY. Nonpublic personal financial information relating to
consumers or customers of the Trust provided by, or at the direction of the
Trust or the Trust's Adviser to BISYS, or collected or retained by BISYS to
perform its duties as fund accountant of the Funds shall be considered
confidential information. BISYS shall not give, sell or in any way transfer such
confidential information to any person or entity, other than affiliates of BISYS
except at the direction of the Trust, the Trusts' Adviser or as required or
permitted by law. BISYS shall have in place and maintain physical, electronic
and procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of records and information relating to consumers of the Trust. The Trust
represents to BISYS that it has adopted a Statement of its privacy policies and
practices as required by Securities and Exchange Commission Regulation S-P and
agrees to provide BISYS with a copy of that statement annually.
30. MISCELLANEOUS.
a. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or
interpret this Agreement.
b. This Agreement constitutes the complete agreement of the
parties hereto as to the subject matter covered by this
Agreement, and supercedes all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the 1998
Agreement.
c. This Agreement may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall
constitute one and the same agreement.
12
d. No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. For special
cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the
circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by the Trust does
not conflict with or violate any requirements of its
Declaration of Trust or then-current prospectuses, or any
rule, regulation or requirement of any regulatory body.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
THE VICTORY PORTOLIOS,
on behalf of each Fund listed on Schedule A,
individually and not jointly
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------
Title:
14
Schedule A
to the Fund Accounting Agreement
between The Victory Portfolios
and BISYS Fund Services Ohio, Inc.
Dated as of April 1, 2002
Name of Portfolio
-----------------
1.Victory Balanced Fund 19. Victory Federal Money Market Fund
2.Victory Diversified Stock Fund 20. Victory Convertible Fund
3.Victory Growth Fund 21. Victory LifeChoice Conservative Investor Fund
4.Victory Intermediate Income Fund 22. Victory LifeChoice Growth Investor Fund
5.Xxxxxxx Xxxxxxxxxxxxx Growth Fund 23. Victory LifeChoice Moderate Investor Fund
6.Victory Ohio Municipal Bond Fund 24. Victory Gradison Government Reserves Fund
7.Victory Prime Obligations Fund 25. Victory Small Company Opportunity Fund
8.Victory Real Estate Investment Fund 26. Victory Established Value Fund
9.Victory Special Value Fund 27. Victory Nasdaq 100 Index Fund
10.Victory Stock Index Fund
11.Victory Tax-Free Money Market Fund
12.Victory Value Fund
13.Victory Financial Reserves Fund
14.Victory Fund for Income
15.Victory Institutional Money Market Fund
16.Victory National Municipal Bond Fund
17.Victory New York Municipal Bond Fund
18.Victory Ohio Municipal Money Market Fund
THE VICTORY PORTOLIOS,
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
A-1
Schedule B
to the Fund Accounting Agreement
between The Victory Portfolios
and BISYS Fund Services Ohio, Inc.
Dated as of April 1, 2002
Fund Accounting Fees for The Victory Portfolios:
$100,000 per annum per Money Fund
$60,000 per annum per Equity Fund, subject to partial fee waiver as
set forth below.
$50,000 per annum per Fixed Income Fund, subject to partial fee
waiver as set forth below.
With respect to any Equity Fund with average daily net assets of less than
$175,000,000 at the time of execution of this Agreement (or at the time of
inception of such Equity Fund, if such Equity Fund was not in existence at the
time of execution of this Agreement), BISYS shall only charge such Equity Fund a
fee of $35,000 per annum until such time as such Equity Fund's average daily net
assets attain or exceed $175,000,000.
With respect to any Fixed Income Fund with average daily net assets of
less than $75,000,000 at the time of execution of this Agreement (or at the time
of inception of such Fixed Income Fund, if such Fixed Income Fund was not in
existence at the time of execution of this Agreement), BISYS shall only charge
such Fixed Income Fund a fee of $35,000 per annum until such time as such Fixed
Income Fund's average daily net assets attain or exceed $75,000,000.
Transaction Charges per Fund:
$5 per security transaction (including foreign exchanges, patents,
corporate actions, and margin payments).
Multiple Class Charges:
A $833 per month charge will be assessed for each class of shares after
the first class, for all Funds. This is separate from and in addition to
other charges.
In addition, BISYS shall be entitled to receive miscellaneous service fees
and out-of pocket expenses in accordance with Section 4 hereof.
B-1
