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Exhibit (9)(v)
Agency Agreement dated March 18, 1997 between Pegasus Funds
and BISYS Fund Services, Inc.
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AGENCY AGREEMENT
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THIS AGREEMENT made as of the 18th day of March, 1997, by and among
PEGASUS FUNDS (the "Fund"), a Massachusetts business trust registered as an
open-end management investment company under the Investment Company Act of 1940
(the "1940 Act"); BISYS FUND SERVICES, INC. ("BFS"), a Delaware corporation; and
BISYS QUALIFIED PLAN SERVICES, INC., a Delaware corporation ("BQPS").
W I T N E S S E T H:
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WHEREAS, the Fund has caused First Data Investor Services Group, Inc.,
the transfer agent, dividend disbursement agent and shareholder servicing agent
for the Fund (the "Transfer Agent") to establish a master account for each
investment portfolio of the Fund identified on Schedule A (individually, a
"Portfolio"; collectively, the "Portfolios") on its mutual fund shareholder
accounting system reflecting the aggregate ownership of such Portfolios by each
of the tax-qualified defined contribution plans made available by First Chicago
NBD Bank (individually, a "Plan"; collectively, the "Plans") for which BQPS has
agreed to provide Plan recordkeeping services;
WHEREAS, it is intended that BQPS will establish individual accounts on
its defined contribution plan record-keeping system reflecting all transactions
by or on behalf of participants and beneficiaries under the Plans which result
in purchases or redemptions by the Plans of shares of the Portfolios;
WHEREAS, it is intended that BFS will act as a servicing agent for the
Fund to receive orders by the Plans for purchases and redemptions of shares of
the Portfolios resulting from transactions by or on behalf of the Plan
participants and beneficiaries which are recorded on BQPS' defined contribution
plan record-keeping system;
WHEREAS, the parties hereto have agreed to utilize the Fund/SERV system
established by National Securities Clearing Corporation ("NSCC") for the
placement and settlement of Fund trades ("Fund/SERV"); and
WHEREAS, it is intended that the settlement of trades through Fund/SERV
will provide for the settlement of trades within three days of each trade date.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
Section 1. Appointment as Servicing Agent. BFS is hereby appointed as a
Servicing Agent for the Fund to receive orders, in accordance with the
procedures outlined in Section 5 hereof, for the purchases and redemptions by
the Plans of shares of the Portfolios. Such purchases and redemptions shall be
based on participant-level transactions made by or on behalf of participants and
beneficiaries under the Plans which are recorded on BQPS' defined contribution
plan record-keeping system. For purposes of this Agreement "participant-level
transactions" shall include:
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(a) any authorized direction to invest contributions by or on
behalf of any Plan participant in any Portfolio in accordance with the
terms and conditions of the applicable Plan and the Fund's
prospectuses;
(b) any authorized direction to transfer or exchange existing,
amounts held on behalf of any participant or beneficiary by the
applicable Plan to any Portfolio in accordance with the terms and
conditions of the Plan and the Fund's prospectuses;
(c) any authorized direction to transfer or exchange existing,
amounts invested in any Portfolio on behalf of any participant or
beneficiary by the applicable Plan to any other investment option
offered under the Plan in accordance with the terms and conditions of
the Plan and the Fund's prospectuses; and
(d) any authorized direction to pay loan, withdrawal or
distribution proceeds to a participant or beneficiary by the applicable
Plan from the Fund in accordance with the terms and conditions of the
Plan and the Fund's prospectuses.
BQPS will notify the Fund in writing of any changes in a Plan which
would have an effect on the aforementioned procedures. BQPS shall maintain
records for each Plan and for the participants thereof reflecting all shares of
each Portfolio purchased and redeemed by each Plan based on participant-level
transactions (including the date and price for all transactions and share
balances) and all reinvestment by each Plan of dividends and capital gains
distributions paid by the Portfolios. BQPS shall reconcile on each business day
all transactions by each Plan involving shares of the Portfolios (including
purchases, redemptions and reinvestments of dividends and capital gains
distributions),with the corresponding participant-level transactions on BQPS'
defined contribution plan record-keeping system.
Section 2. Appointment of Subcontractor. BFS may, in its discretion
appoint in writing other parties that are qualified to perform the services that
BFS is responsible for providing under this Agreement and are reasonably
acceptable to the Fund (individually, a "Subcontractor") to carry out some or
all of its responsibilities under this Agreement. It is understood that any such
Subcontractor shall be the agent of BFS and not the anent of the Fund or the
Transfer Agent; it is further understood that BFS shall be fully responsible for
the acts of such Subcontractor and shall not be relieved of any of its
responsibilities hereunder by the appointment of such Subcontractor.
Section 3. Fees. The Fund shall pay BFS for the services to be provided
by BFS under this Agreement in accordance with, and in the manner set forth in,
Schedule B hereto.
Section 4. Reimbursement of Expenses. In addition to paying BFS the
fees described in Section 3 hereof, the Fund agrees to reimburse BFS for its
out-of-pocket expenses in providing services hereunder, including without
limitation, the following:
(a) All freight and other delivery and bonding charges
incurred by BFS in delivering materials to shareholders or any of the
parties to this Agreement;
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(b) All direct telephone, telephone transmission and telecopy
or other electronic transmission expenses incurred by BFS as required
to perform the services to be provided by BFS hereunder;
(c) Costs of postage, couriers, stock computer paper,
statements, labels, envelopes, checks, reports, letters, tax forms,
proxies, notices or other form of printed material which shall be
required by BFS for the performance of the services to be provided
hereunder;
(d) The cost of microfilm or microfiche of records or other
materials; and
(e) Any expenses BFS shall incur at the written direction of a
duly authorized officer of the Fund.
Section 5. Accepting Purchase and Redemption Orders. In accordance with
the procedures set forth below. BFS will receive orders by the Plans for
purchases and redemptions of shares of the Portfolios resulting from
participant-level transactions which are recorded on BQPS' defined contribution
plan record-keeping system. In the case of any such purchase or redemption order
received by BQPS on any business day prior to the time the net asset value of
shares of the Portfolio is determined, the order shall be accorded a trade date
on the accounting system maintained on behalf of the Fund that is the date of
receipt of the order by BQPS. In the case of any such purchase or redemption
order received by BQPS on any business day after the time the net asset value of
shares of the Portfolio is determined, the order shall be accorded a trade date
on such accounting system that is the next business day that the Portfolio is
open for trading.
(a) Receipt by BOPS of Participant-Level Transactions. It is
understood by the parties that BQPS may receive participant-level
transactions in various formats, including directions in writing, by
computer magnetic tape, diskette or electronic data transmission, or by
any other accepted method for transmitting defined contribution plan
data that is adopted for the Plans. All participant-level transactions
shall be received and processed by BQPS in accordance with its standard
transaction processing procedures that apply to all investment options
offered under the Plans which procedures shall be in accordance with
the procedures outlined in the Fund's current prospectuses and
applicable provisions of law. BQPS shall maintain records sufficient to
identify the date of receipt of all participant-level transactions
involving the Portfolios and shall make such records available upon
request for examination by the Fund or its designated representative
or, at the request of the Fund, by appropriate governmental
authorities. Under no circumstances shall BQPS change, alter or
manipulate any participant-level transactions received by it in good
order.
(b) Transmission by the Transfer Agent of Share Price,
Dividend and Capital Gains Information. The Fund will cause the
Transfer Agent to transmit to BFS, by 6:00 p.m. Eastern tune on each
business day that the Fund is open for trading, a telefax identifying
the net asset, value per share (or "share price") of each Portfolio as
of the
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close of trading on that business day. The Fund will also cause the
Transfer Agent to transmit to BFS, by 6:00 p.m. Eastern time on or
before each record date established for the payment of dividends or
capital gains distributions by any Portfolio, a telefax containing the
dividend or capital gains distribution rate for such payment.
(c) Placement and Settlement of Trades on Behalf of the Plans.
Based on the aggregate participant-level transactions received by BFS
on each business day that the Fund is open for trading, net purchase
and redemption orders shall be transmitted to the Transfer Agent via
Fund/SERV on the same date that such orders are received by BFS;
provided, however, that money market fund purchase and redemption
orders, will be placed up to three days following receipt of such
orders. The Fund. will cause the Transfer Agent to make available a
trading desk until 7:00 p.m. Eastern time each day for purposes of
processing redemption orders.
(d) Monthly Statements by the Transfer Agent. The Fund will
cause the Transfer Agent to provide to BFS, by the 15th business day of
each calendar month, a statement for the preceding calendar month
reflecting the shares of each Portfolio held by the Plans as of the end
of such preceding month and all transactions by the Plans in each
Portfolio during such preceding month.
(e) Establishment of Networking Accounts; Transmission of
Files. The Fund will cause the Transfer Agent to establish an
appropriate NSCC Network Level 4 account for Plan-related omnibus
accounts. The Fund will also cause the Transfer Agent to transmit files
to BFS reflecting current Portfolio positions in such networking
accounts. Such files shall be transmitted on a semi-monthly basis at
such times that are agreed upon by the parties.
(f) Processing Adjustments. In the event of any error or delay
with respect to the procedures outlined in this Section 5, which is
caused by the Fund or the Transfer Agent, the Fund will cause the
Transfer Agent to make any adjustments on the Transfer Agent's
accounting system necessary to correct such error or delay and the Fund
shall reimburse BFS for any losses or reasonable costs incurred
directly as a result of the error or delay. In the event of any error
or delay with respect to the procedures outlined in this Section 5(f)
which is caused by BFS or BQPS, the Fund will cause the Transfer Agent
to make any adjustments on the Transfer Agent's accounting system
necessary to correct such error or delay provided that the Fund shall
be reimbursed by BFS or BQPS for any losses or reasonable costs
incurred by the Fund or by the Transfer Agent directly as a result of
the error or delay. In the event of any such adjustments on the
Transfer Agent's accounting system, BFS shall make the corresponding
adjustments on its accounting system and BQPS shall make the
corresponding adjustments on its defined contribution plan
record-keeping system. BFS, BQPS and the Fund, respectively), each
agree to provide the others prompt notice of any errors or delays of
the type referred to in this Section 5(f) and to use reasonable efforts
to take such action as may be appropriate to avoid or mitigate any such
costs or losses.
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(g) Contingency Procedures. BFS and BQPS shall develop
appropriate, mutually agreeable contingency procedures to protect the
Plan participants and beneficiaries from any significant investment
loss or market exposure attributable to transmission failures.
Section 6. Fund Communications. The following materials and information
with respect to the Fund shall be furnished where appropriate or required by
applicable laws, to fiduciaries, participants and beneficiaries under the Plans:
(a) Fund's Prospectuses, Annual Reports and Proxy Materials.
The Fund or its designee shall make available to Plan sponsors current
prospectuses, shareholder reports, and proxy statements and related
materials for the Fund. The Fund or its designee shall also furnish
additional supplies of such materials for individual participants.
(b) Review by the Fund of Participant Communications
Materials. It is understood by the parties that, based on the current
prospectuses for the Fund and the information supplied under Section
6(a) above, BQPS may prepare communications or disclosure materials for
participants and beneficiaries under the Plans which describe the Fund
in the same format as that used for the other investment options
offered under the Plans. BQPS shall supply the Fund or the designated
representative of the Fund with copies of such materials on the Fund
within a reasonable period of time in advance of their intended
distribution to the Plan participants and beneficiaries. BQPS and the
Fund shall establish a mutually agreeable time frame in which such
materials shall be reviewed by the Fund or the designated
representative of the Fund for any errors, omissions or objections.
BQPS agrees not to use any such materials without the approval of the
Fund or the designated representative of the Fund.
Section 7. Standard of Care: Reliance on Records and Instructions:
Indemnification.
(a) BFS and BQPS shall use their best efforts to ensure the
accuracy of all services performed under this Agreement, but shall not
be liable to the Fund for any action taken or omitted by them in the
absence of bad faith, willful misfeasance, negligence or reckless
disregard by them of their obligations and duties. BFS and BQPS each
agrees to indemnify and hold harmless the Fund and its employees,
agents, trustees, officers and nominees from and against any and all
claims, demands, actions and suits, whether groundless or otherwise,
and from and against any and all judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of
every nature and character (i) arising out of the indemnifying party's
bad faith, willful misfeasance, negligence or reckless disregard of its
obligations and duties hereunder, (ii) arising out of any breach by the
indemnifying party of a material provision of this Agreement; (iii)
arising out of any breach by the indemnifying party of any
representation, warranty or covenant made in this Agreement; or (iv)
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to the Fund by, the indemnifying
party; provided that this indemnification shall not apply to actions or
omissions of the Fund and its employees. agents, trustees, officers and
nominees in cases of their own bad faith, willful misfeasance,
negligence or reckless
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disregard by them of their obligations and duties; and further provided
that, prior to confessing any claim against it which may be the subject
of this indemnification, the Fund shall give each of BFS and BQPS
written notice of and reasonable opportunity to defend against said
claim in its own name or in the name of the Fund.
(b) The Fund agrees to indemnify and hold harmless BFS, BQPS
and their employees, agents, directors, officers and nominees from and
against any and all claims, demands, actions and suits, whether
groundless or otherwise, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character (i) arising out of the
Fund's bad faith, willful misfeasance, negligence or reckless disregard
of its obligations and duties hereunder; (ii) arising out of any breach
by the Fund of a material provision of this Agreement; (iii) arising
out of any breach by the Fund of any representation, warranty or
covenant made in this Agreement; or (iv) based, if applicable, upon
reasonable reliance on information, records, instructions or requests
given or made to BFS and/or BQPS by or on behalf of the Fund; provided
that this indemnification shall not apply to actions or omissions of
BFS or BQPS and their employees, agents, directors, officers and
nominees in cases of their own bad faith, willful misfeasance,
negligence or reckless disregard by them of their obligations and
duties; and further provided that prior to confessing any claim against
them which may be the subject of this indemnification, BFS and/or BQPS
shall give the Fund written notice of and reasonable opportunity to
defend against said claim in its own name or in the name of BFS and/or
BQPS.
Section 8. Maintenance of Computer Systems and Other Equipment;
Uncontrollable Events. BFS and BQPS shall maintain adequate and reliable
computer and other equipment necessary or appropriate to carry out their
obligations under this Agreement. In the event of computer or other equipment
failures at their own facilities beyond their reasonable control. BFS and BQPS
shall use their best efforts to minimize service interruptions. BFS and BQPS
represent and warrant that the various procedures and systems which they have
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the records, data, equipment, facilities and other
property used in the performance of their obligations hereunder are adequate and
that they will make such changes therein from time to time as are required for
the secure performance of their obligations hereunder. Notwithstanding the
foregoing, BFS and BQPS assume no responsibility hereunder, and shall not be
liable for any damage, loss of data, delay or any other loss whatsoever caused
by events beyond their reasonable control.
Section 9. Confidentiality. All information, books, records, and data
supplied by one party to any other party or parties in connection with the
negotiation or carrying out of this Agreement are and shall remain the property
of the party supplying such information, books, records, or data and shall be
kept confidential by the other parties except as may be required by law.
Section 10. Effective Date; Duration and Termination of Agreement. This
Agreement shall be effective as of the date first written above. Any party to
this Agreement may terminate such Agreement upon ninety (90) days' written
notice to the other parties (which notice may be
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waived by any of the parties). This Agreement shall automatically terminate upon
the discontinuance of the Fund as an investment option offered under the Plans
or if, at any time, the authorizations, licenses, qualifications or
registrations required to be maintained by BFS or BQPS in connection with the
performance of their duties hereunder shall lapse or cease to remain in full
force and effect.
Section 11. Representations and Warranties. BFS and BQPS each represent
that it has obtained,. and shall maintain,. all authorizations, licenses,
qualifications or registrations of any governmental body required of it in
connection with this Agreement and the registrations are and will remain in full
force and effect during the term of this Agreement. BFS, BQPS and the Fund each
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. In addition, each of the parties
hereto represents that it has been duly authorized to enter into this Agreement.
Section 12. Amendments. The parties hereto may agree in writing to
amend this Agreement at any time in whole or in part.
Section 13. Assignment. This Agreement and the rights and duties
hereunder shall not be assignable by any of the parties hereto except by the
specific written consent of the other parties; provided, however, that this
Section 13 shall not limit or in any way affect BFS' right to appoint a
Subcontractor pursuant to Section 2 hereof. This Agreement shall be binding upon
and inure to the benefit of, the parties hereto and their respective successors
and permitted assigns.
Section 14. Notices. Any notice provided hereunder shall be
sufficiently given when sent by registered or certified mail,. postage prepaid,
to the party required to be served with such notice at the following addresses:
for BFS, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, facsimile number (614)
470-8725, Attn: ▇▇▇▇▇▇ 0. ▇▇▇▇▇▇▇▇; for BQPS, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, Attn: ▇▇▇▇ ▇▇▇▇; for the
Fund, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇,
Attn: D'▇▇▇ ▇▇▇▇▇. Any notice, except a notice of termination pursuant to
Section 10, may also be sent by confirmed facsimile transmission, which shall be
deemed to have been given when sent. Any of the parties hereto may, from time to
time, specify in writing to the other parties a different address or facsimile
number for purposes of receiving notice pursuant to this Section 14.
Section 15. Headings. Paragraph headings in this Agreement are included
for convenience only and are not to be used to construe or interpret this
Agreement.
Section 16. Governing Law. This Agreement shall be governed by, and its
provisions shall be construed in accordance with, the laws of the State of Ohio.
Section 17. Matters Relating to the Fund as a Massachusetts Business
Trust. The names "Pegasus Funds" and "Trustees of Pegasus Funds" refer,
respectively, to the business trust created and the trustees, as trustees but
not individually or personally, acting from time to time under an Amended and
Restated Declaration of Trust dated as of May 1, 1992,. to which reference is
hereby made and a copy of which is on file at the office of the Secretary of the
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Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of the Fund
entered into in the name or on behalf thereof by any of the trustees,
shareholders or 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 Fund personally, but bind only the assets of the Fund,
and all persons dealing with any portfolio of the Fund must look solely to the
assets of the Fund belonging to such portfolio for the enforcement of any claims
against the Fund.
Section 18. Sole Agreement. This Agreement is the sole agreement
whereby BFS acts as servicing agent for the Fund, and it supersedes any and all
preexisting agreements whereby BFS or its affiliates acted as servicing agents
for the Fund is predecessor investment companies.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by their duly authorized officers as of the day and
year first above written.
BISYS FUND SERVICES, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇
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Title:
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Date:
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BISYS QUALIFIED PLAN SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Title: Senior Vice-President
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Date:
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PEGASUS FUNDS
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: President
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Date:
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SCHEDULE A
FUND PORTFOLIOS:
Money Market Fund
Treasury Money Market Fund
Municipal Money Market Fund
Michigan Municipal Money Market Fund
Cash Management Fund
U.S. Government Securities Cash Management Fund
Treasury Prime Cash Management Fund
Growth Fund International Equity Fund
Equity Index Fund
Growth and Value Fund
Intrinsic Value Fund Mid-Cap Opportunity Fund
Small-Cap Opportunity Fund
Equity Income Fund Bond Fund
Intermediate Bond Fund
Municipal Bond Fund
Short Bond Fund
Michigan Municipal Bond Fund
Intermediate Municipal Bond Fund
Income Fund International Bond Fund
Managed Assets Balanced Fund
Managed Assets Conservative Fund
Managed Assets Growth Fund
A-1
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SCHEDULE B
FEES:
As compensation for its services hereunder, the Fund shall pay BFS a
fee, computed daily and payable monthly, at the annual rate of .25% of
the average net assets attributable to shares owned by the Plans of
each Fund portfolio listed on Schedule A hereto.
B-1
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