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EXHIBIT (9)(y)
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FUND ACCOUNTING AGREEMENT
This Agreement is made as of July 9, 1996 between The Sessions Group
(the "Trust"), an Ohio business trust having its principal place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS Fund Services, Inc.
("BISYS"), a Delaware corporation 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 of The KeyPremier Prime Money Market Fund and The KeyPremier
Pennsylvania Municipal Bond Fund and such other investment portfolios of the
Trust identified on Schedule A hereto, as such Schedule may be amended from
time to time (individually referred to herein as a "Fund" and collectively as
the "Funds"); 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:
Section 1. Services as Fund Accountant.
(a) Maintenance of Books and Records. 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 (the "Rule"):
(i) 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;
(ii) 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;
(iii) Separate ledger accounts required by
subsection (b)(2)(ii) and (iii) of the Rule; and
(iv) A monthly trial balance of all ledger
accounts (except shareholder accounts) as required by
subsection (b)(8) of the Rule.
(b) Performance of Daily Accounting Services. In
addition to the maintenance of the books and records specified
above, BISYS shall perform the following accounting services
daily for each Fund:
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(i) Calculate the net asset value per
share utilizing prices obtained from the sources
described in subsection 1(b)(ii) below;
(ii) 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;
(iii) Verify and reconcile with the Funds'
custodian all daily trade activity;
(iv) 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;
(v) 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;
(vi) Report to the Trust the daily market
pricing of securities in any money market Funds,
with the comparison to the amortized cost basis;
(vii) Determine unrealized appreciation and
depreciation on securities held in variable net asset
value Funds;
(viii) Amortize premiums and accrete
discounts on securities purchased at a price other
than face value, if requested by the Trust;
(ix) Update fund accounting system to
reflect rate changes, as received from a Fund's
investment adviser, on variable interest rate
instruments;
(x) Post Fund transactions to appropriate
categories;
(xi) Accrue expenses of each Fund
according to instructions received from the Trust's
Administrator;
(xii) Determine the outstanding receivables
and payables for all (1) security trades, (2) Fund
share transactions and (3) income and expense
accounts;
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(xiii) Provide accounting reports in
connection with the Trust's regular annual audit and
other audits and examinations by regulatory agencies;
and
(xiv) Provide such periodic reports as the
parties shall agree upon, as set forth in a separate
schedule.
(c) Special Reports and Services
(i) BISYS may provide additional special
reports upon the request of the Trust or a Fund's
investment adviser, which may result in an additional
charge, the amount of which shall be agreed upon
between the parties.
(ii) BISYS may provide such other similar
services with respect to a Fund as may be reasonably
requested by the Trust, which may result in an
additional charge, the amount of which shall be
agreed upon between the parties.
(d) Additional Accounting Services. BISYS shall
also perform the following additional accounting services for
each Fund:
(i) Provide monthly a download (and hard
copy thereof) of the financial statements described
below, upon request of the Trust. The download will
include the following items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets, and
Condensed Financial Information;
(ii) Provide accounting information for the
following:
(A) federal and state income tax
returns and federal excise tax returns;
(B) the Trust's semi-annual
reports with the Securities and Exchange
Commission ("SEC") on Form N-SAR;
(C) the Trust's annual,
semi-annual and quarterly (if any)
shareholder reports;
(D) registration statements on
Form-N1A and other filings relating to the
registration of shares;
(E) the Administrator's
monitoring of the Trust's status as a
regulated investment company
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under Subchapter M of the Internal Revenue
Code, as amended;
(F) annual audit by the Trust's
auditors; and
(G) examinations performed by
the SEC.
Section 2. Subcontracting.
BISYS may, at its expense, subcontract with any entity or person
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.
Section 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 A hereto, as such Schedule may be amended from time to time.
If in any fiscal year the aggregate expenses of a particular Fund (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, BISYS will
reimburse such Fund for a portion of such excess expenses equal to such excess
times the ratio of the fees respecting such Fund otherwise payable to BISYS
hereunder to the aggregate fees respecting such Fund otherwise payable to BISYS
hereunder, to Xxxxxxxxxx Xxxxxx & Company, Inc. under the Investment Advisory
Agreement between Xxxxxxxxxx Xxxxxx & Company, Inc. and the Trust and to BISYS
Fund Services Limited Partnership under the Management and Administration
Agreement between BISYS Fund Services Limited Partnership and the Trust. The
expense reimbursement obligation of BISYS is limited to the amount of its fees
hereunder for such fiscal year, provided, however, that notwithstanding the
foregoing, BISYS shall reimburse a particular Fund for such proportion of such
excess expenses regardless of the amount of fees paid to it during such fiscal
year to the extent that the securities regulations of any state having
jurisdiction over the Trust so require. Such expense reimbursement, if any,
will be estimated daily and reconciled and paid on a monthly basis.
Section 4. Reimbursement of Expenses.
In addition to paying BISYS the fees described in Section 3 hereof,
the Trust agrees to reimburse BISYS for BISYS's out-of-pocket expenses in
providing services hereunder, including without limitation the following:
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(1) All freight and other delivery and bonding charges incurred by
BISYS in delivering materials to and from the Trust;
(2) 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;
(3) The cost of obtaining security market quotes pursuant to
Section 1(b)(ii) above;
(4) The cost of microfilm or microfiche of records or other
materials;
(5) Any expenses BISYS shall incur at the written direction of an
officer of the Trust thereunto duly authorized by the Trust's
Board of Trustees; and
(6) Any additional out-of-pocket expenses reasonably incurred by
BISYS in the performance of its duties and obligations under
this Agreement.
Section 5. Effective Date. This Agreement shall become
effective with respect to a Fund as of the date first written above (or, if a
particular Fund is not in existence on that date, on the date an amendment to
Schedule A to this Agreement relating to that Fund is executed) (the "Effective
Date").
Section 6. Term. This Agreement shall continue in effect with
respect to a Fund, unless earlier terminated by either party hereto as provided
hereunder, until July 9, 1999, and thereafter shall be renewed automatically
for successive one-year terms unless written notice not to renew is given by
the non-renewing party to the other party at least 60 days prior to the
expiration of the then-current term; provided, however, that 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 3 hereof, the
amount of all of BISYS' reasonable 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.
To the extent
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that BISYS may retain in its possession copies of any Trust documents or
records subsequent to such termination, which copies had not been requested by
or on behalf of the Trust in connection with the termination process described
above, for a reasonable fee, BISYS will provide the Trust with reasonable
access to such copies. The performance of BISYS under this Agreement shall be
reviewed at least annually by the Trust's Board of Trustees. Such review shall
include the review of acts of negligence, if any, by BISYS, and if such acts of
negligence are determined to be material by the Trustees, such acts shall be an
event of "cause" as used below. This Agreement is terminable with respect to a
particular Fund only upon mutual agreement of the parties hereto; upon 180
days' written notice by the Trust after the initial term hereof but only in
connection with the reorganization of the Funds into another registered
management investment company; or for "cause" (as defined below) by the party
alleging "cause," on not less than 60 days' notice by the Trust's Board of
Trustees or by BISYS.
For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad faith, gross negligence, acts of negligence by BISYS as
determined by the Trustees to be material or reckless disregard on the part of
either party with respect to its obligations and duties set forth herein; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which either party has been found guilty of criminal or unethical behavior in
the conduct of its business; (c) the dissolution or liquidation of either party
or other cessation of business other than a reorganization or recapitalization
of such party as an ongoing business; (d) financial difficulties on the part of
either party which is 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; or (e) any
circumstance which substantially impairs the performance of either party's
obligations and duties as contemplated herein.
Section 7. Standard of Care; Reliance on Records and
Instructions; Indemnification. BISYS shall use its best efforts 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 from reckless disregard by it of
its obligations and duties. A Fund 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, whether groundless or
otherwise, 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
nonactions with respect to the performance
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of services under this Agreement with respect to such Fund or based, if
applicable, upon reasonable reliance on information, records, instructions or
requests with respect to such Fund given or made to BISYS by a duly authorized
representative of the Trust; provided that this indemnification shall not apply
to actions or omissions of BISYS in cases of its own bad faith, willful
misfeasance, negligence or from reckless disregard by it of its obligations and
duties, and further provided that prior to confessing 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.
Section 8. 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 at reasonable times and otherwise to keep confidential all books and
records and other information relative to the Trust and its shareholders;
except when requested to divulge such information by duly-constituted
authorities or court process.
Section 9. Uncontrollable Events. BISYS assumes no
responsibility hereunder, and shall not be liable, for any damage, loss of
data, delay or any other loss whatsoever caused by events beyond its reasonable
control.
Section 10. Reports. BISYS will furnish to the Trust and to its
properly authorized auditors, investment advisers, examiners, distributors,
dealers, underwriters, salesmen, insurance 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 no later than three business days from the receipt thereof. In the
event that errors or discrepancies, except such errors and discrepancies as may
not reasonably be expected to be discovered by the recipient within ten days
after conducting a diligent examination, are not so reported within the
aforesaid period of time, a report will for all purposes be accepted by and
binding upon the Trust and any other recipient, and except as provided in
Section 7 hereof, BISYS shall have no liability for errors or discrepancies
therein and shall have no further
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responsibility with respect to such report except to perform reasonable
corrections of such errors and discrepancies within a reasonable time after
requested to do so by the Trust.
Section 11. 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.
Section 12. 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; provided, however, that to the extent needed
by BISYS in the performance of its services or for its legal protection, BISYS
may retain copies of such files, records and documents at BISYS' own expense.
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.
Section 13. Representations of the Trust. The Trust certifies to
BISYS that: (1) as of the close of business on the Effective Date, each Fund
which 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.
Section 14. 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 of the blank checks, 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.
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Section 15. Insurance. BISYS shall notify the Trust should any
of its insurance coverage be cancelled or reduced. Such 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 of the total
outstanding claims made by BISYS under its insurance coverage.
Section 16. Information to be Furnished by the Trust and Funds.
The Trust has furnished to BISYS the following:
(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 Declaration has been filed.
(b) Copies of the following documents:
(i) The Trust's By-Laws and any amendments thereto; and
(ii) Certified copies of resolutions of the Board of
Trustees covering the approval of this Agreement,
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
thereunder.
(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 Prospectus and Statement of Additional
Information for each Fund.
Section 17. Information Furnished by BISYS.
(a) BISYS has furnished to the Trust the following:
(i) BISYS's Articles of Incorporation; and
(ii) BISYS's Bylaws and any amendments thereto.
(b) BISYS shall, upon request, furnish certified copies of actions
of BISYS covering the following matters:
(i) Approval of this Agreement, and authorization of a
specified officer of BISYS to execute and deliver
this Agreement; and
(ii) Authorization of BISYS to act as fund accountant for
the Trust and to provide accounting services for the
Trust.
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Section 18. 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 16 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.
Section 19. Compliance with Law. Except for the obligations of
BISYS set forth in Section 8 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 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 of
1933 and the 1940 Act has been declared or becomes effective.
Section 20. 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: 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000, or at such other address as such party may from
time to time specify in writing to the other party pursuant to this Section.
Section 21. Headings. Paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
Section 22. 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.
Section 23. Governing Law. This Agreement shall be governed by
and provisions shall be construed in accordance with the laws of the State of
Ohio.
Section 24. Limitation of Liability of the Trustees and
Shareholders. The Sessions Group is a business trust organized under Chapter
1746, Ohio Revised Code and under a Declaration of Trust, to which reference is
hereby made and a copy of which is on file at the office of the Secretary of
State of Ohio as required by law, and to any and all amendments thereto so
filed or hereafter filed. The obligations of "The Sessions Group" entered into
in the name or on behalf thereof by any of the Trustees, officers, employees or
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agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, officers, employees, agents or shareholders of the
Trust personally, but bind only the assets of the Trust, as set forth in
Section 1746.13(A), Ohio Revised Code, and all persons dealing with any of the
Funds of the Trust must look solely to the assets of the Trust belonging to
such Fund for the enforcement of any claims against the Trust.
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 SESSIONS GROUP
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
BISYS FUND SERVICES, INC.
By /s/ J. Xxxxx Xxxxx
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(name) (title)
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Dated: January __, 1997
SCHEDULE A
TO THE
FUND ACCOUNTING AGREEMENT
BETWEEN
THE SESSIONS GROUP
AND
BISYS FUND SERVICES, INC.
JULY 9, 1996
Name of Fund Compensation* Date
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The KeyPremier Prime The greater of (i) the July 9, 1996
Money Market Fund annual rate of .03% of
and The KeyPremier such Fund's average
Pennsylvania daily net assets or (ii)
Municipal Bond Fund the applicable annual
minimum fee of $30,000
per fund ($35,000 for a
municipal or tax-exempt
fund).
The KeyPremier The greater of (i) the October __, 1996
Established Equity annual rate of .03% of
Fund and The such Fund's average
KeyPremier daily net assets or (ii)
Intermediate Term the applicable annual
Income Fund minimum fee of $30,000
per fund ($35,000 for a
municipal or tax-exempt
fund).
The KeyPremier The greater of (i) the January __, 1997
Aggressive Growth annual rate of .03% of
Fund such Fund's average
daily net assets or (ii)
the applicable annual
minimum fee of $30,000
per fund ($35,000 for a
municipal or tax-exempt
fund).
BISYS FUND SERVICES, INC. THE SESSIONS GROUP
By By
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J. Xxxxx Xxxxx, President Xxxxxx X. Xxxxx, President
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* All fees are computed daily and paid periodically.
