EXHIBIT (h)(8)
FORM OF
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of April 23, 2007 by and between BB&T VARIABLE
INSURANCE FUNDS, a Massachusetts business trust (the "Trust") and PFPC INC., a
Massachusetts corporation ("PFPC").
WITNESSETH:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC to provide accounting services to
its investment portfolios listed on Exhibit A attached hereto and made a part
hereof and as such Exhibit A may be amended from time to time (each, a "Fund")
and PFPC wishes to furnish such services;
NOW, THEREFORE in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Trust and any other
person duly authorized by the Trust's Board of Trustees to give Oral
Instructions and Written Instructions on behalf of the Trust. An
Authorized Person's scope of Authority may be limited by setting forth
such limitation in a written document signed by both parties hereto.
(d) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person. PFPC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" mean the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "Shares" mean the shares of beneficial interest of any series or class
of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered electronically (with respect to sub-item (ii) above) or by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Trust hereby appoints PFPC to provide accounting services
to each of the Funds identified on Exhibit A in accordance with the terms
set forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. COMPLIANCE WITH GOVERNMENT RULES AND REGULATIONS. PFPC undertakes to comply
with all applicable laws, rules and regulations, including, without
limitation, applicable requirements of the Securities Laws, and all
applicable rules and regulations promulgated by the SEC thereunder. Except
as specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Trust or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instructions or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or of any vote, resolution or
proceeding of the Trust's Board of Trustees or of the Trust's
shareholders, unless and until PFPC receives Written Instructions to
the contrary.
(c) The Trust agrees to forward to PFPC Written Instructions confirming
Oral Instructions so that PFPC receives the Written Instructions by
the close of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions are not
received by PFPC or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely upon
such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Trust. If PFPC is in doubt as to any action it should or
should not take, PFPC may request Written Instructions from the Trust.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take with respect to
the Trust, PFPC may (i) upon prior written notice to and after
receiving written approval from, the Trust, request advice from the
Trust's counsel ("Trust Counsel") at the Trust's expense;
or (ii) upon prior notice to the Trust, request advice from PFPC's
counsel ("PFPC Counsel") at PFPC's own expense.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
the Trust and the advice PFPC receives from Trust Counsel, PFPC may,
in good faith, rely upon and follow the advice of such Trust Counsel,
provided that reasonable prior written notice has been given to the
Trust. In the event of a conflict between directions or advice or Oral
Instructions or Written Instructions PFPC receives from the Trust and
the advice PFPC receives from PFPC Counsel, PFPC shall notify the
Trust in writing regarding such conflict. The Trust shall, within a
reasonable period of time after receipt of such notice, notify PFPC in
writing of its agreement or disagreement to any actions or any
omissions to act PFPC proposes to take pursuant to PFPC Counsel's
advice. If the Trust (i) does not respond to PFPC within a reasonable
time; or (ii) responds with agreement to PFPC's proposed actions or
omissions PFPC proposes to take pursuant to PFPC Counsel's advice;
then PFPC may, in good faith, rely upon and follow the advice of PFPC
Counsel. However, in the event where the Trust has timely notified
PFPC in writing of its disagreement with PFPC's proposed actions or
omissions, PFPC and the Trust shall consult with each other in good
faith to reach agreement on the actions or omissions that are the
subject of the Trust's objection. If, after such consultations, PFPC
and the Trust are unable to agree on the actions or omissions in
question, PFPC and the Trust shall consult independent counsel
reasonably acceptable to both parties ("Independent Counsel"), the
expense of
such Independent Counsel to be split 50/50 between PFPC and the Trust,
and PFPC may, after such advice is delivered to PFPC and the Trust,
follow and rely upon the advice of such Independent Counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Trust and without
liability for any action PFPC takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions PFPC
receives from or on behalf of the Trust or from Trust Counsel or, if
PFPC follows and acts in accordance with the provisions of paragraph
(c) hereof, PFPC Counsel or Independent Counsel, as applicable;
provided PFPC believes, in good faith, that such action or inaction is
consistent with those directions or advice and Oral Instructions or
Written Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
6. RECORDS; VISITS. The books and records pertaining to the Trust and the
Funds which are in the possession or under the control of PFPC shall be the
property of the Trust. The Trust and Authorized Persons, shall have access
to such books and records at all times during PFPC's normal business hours.
Upon the reasonable request of the Trust, copies of any such books and
records shall be provided by PFPC to the Trust or to an Authorized Person
at the Trust's expense.
PFPC shall keep and maintain the following records pursuant to Rule
31a-1 (the "Rule") under the 1940 Act:
(a) journals containing an itemized 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;
(d) a monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the
Rule; and
(e) maintain the books and records pertaining to (i) fair value
prices and/or adjustment factors provided by independent
third-party pricing vendors selected by the Trust from time to
time ("Pricing Vendor"), and (ii) market prices for securities
that are valued using fair value information provided by the
Pricing Vendor on such days when the Trust utilizes fair value
prices in its NAV calculation.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about investments, investment
strategies, investment research, research and portfolio management
methodologies, product plans, marketing strategies, finances, operations,
customer relationships, customer profiles (including nonpublic financial
and other information relating to customers), customer lists, sales
estimates, business plans, and internal performance results relating to the
past, present or future business activities of the Trust or PFPC or their
respective subsidiaries and affiliated companies; (b) any scientific or
technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its
confidentiality affords the Trust or PFPC a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable, of the Trust or PFPC; and (d) anything designated as
confidential, by the Trust or PFPC. Notwithstanding the foregoing,
information shall not be Confidential Information and shall not be subject
to such confidentiality obligations if it: (1) is already known to the
receiving party at the time it is obtained; (2) is or becomes publicly
known or available through no wrongful act of the receiving party; (3) is
rightfully received from a third party who, to the best of the receiving
party's knowledge, is not under a duty of confidentiality; or (4) is
released by the protected party to a third party without restriction.
Confidential Information may be disclosed by the receiving party (the party
that received the Confidential Information from the protected party) where
the Confidential Information: (1) is required to be disclosed by the
receiving party pursuant to a court order, subpoena, governmental or
regulatory agency request or order made pursuant to applicable law,
provided that the receiving party has provided the protected party prior
written notice of the same, to the extent such notice is not prohibited by
law; or (2) is reasonably relevant to the defense of any claim or cause of
action asserted against the receiving party provided that the receiving
party has provided the protected party prior written notice of the same, to
the extent such notice is not prohibited by law; (3) is Trust information
provided by PFPC in connection with an independent third party compliance
or other review; provided that the recipient is bound by a duty of
confidentiality; or (4) release of such information by PFPC is necessary in
connection with the provision of services under this Agreement, provided
that the recipient is bound
by a duty of confidentiality. The provisions of this Section 7 shall
survive termination of this Agreement for a period of three (3) years after
such termination.
8. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Trust's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to each
Fund. PFPC shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Trust.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection with
the services provided by PFPC to the Trust. Notwithstanding the foregoing,
the parties acknowledge that the Trust shall retain all ownership rights in
Trust data which resides on PFPC System.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Trust, take reasonable steps to
minimize service interruptions. PFPC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the term
of this Agreement, the Trust, on behalf of each Fund, will pay to PFPC a
fee or fees as may be agreed to in writing by the Trust and PFPC. In
addition, the Trust agrees to pay, and will be billed separately in arrears
for, reasonable expenses incurred by PFPC in the performance of its duties
hereunder.
12. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) ("Losses") arising
directly or indirectly from any appropriate and reasonable action or
omission to act which PFPC takes in connection with the provision of
services to the Trust. Neither PFPC, nor any of its affiliates, shall
be indemnified against any liability (or any expenses incident to such
liability) caused by PFPC's or its affiliates' material and uncured
breach of any term of this Agreement or PFPC's or its affiliates'
willful misfeasance, bad faith, gross negligence or reckless disregard
in the performance of PFPC's activities under this Agreement. Any
amounts payable by the Trust hereunder shall be satisfied only against
the relevant Fund's assets and not against the assets of any other
investment portfolio of the Trust.
(b) PFPC agrees to indemnify and hold harmless the Trust and its
affiliates from all Losses arising from PFPC's or its affiliates'
material and uncured breach of any term of this Agreement or PFPC's or
its affiliates' willful misfeasance, bad faith,
gross negligence or reckless disregard in the performance of PFPC's
activities under this Agreement.
(c) In any case in which one party hereto (the "Indemnifying Party") may
be asked to indemnify or hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying
Party promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party, although the
failure to do so shall not prevent recovery by the Indemnified Party
(except to the extent the Indemnifying Party shows that the delay
prejudiced the defense of the action), and shall keep the Indemnifying
Party advised with respect to all developments concerning such
situation. The Indemnifying Party may participate in the defense of
against, and shall have the option to defend the Indemnified Party
against, any Indemnification Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so
elects to assume the defense, such defense shall be conducted by
counsel chosen by the Indemnifying Party and satisfactory to the
Indemnified Party, and thereupon the Indemnifying Party shall take
over complete defense of the Indemnification Claim and the Indemnified
Party shall sustain no further legal or other expenses in respect of
such Indemnification Claim (except for reasonable investigation
costs). In the event that the Indemnifying Party does not elect to
assume the defense of any such suit within 15 days of its receipt of
notice of the Indemnification Claim, or in case the Indemnified Party
reasonably does not approve of counsel chosen by the Indemnifying
Party, or in case there is a conflict of interest between the
Indemnifying Party or the Indemnified Party, the Indemnifying Party
will reimburse the Indemnified Party for the fees and expenses of any
counsel retained by the Indemnified Party. The Indemnified Party will
not confess any Indemnification Claim or make any compromise in any
case in which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior written
consent (which shall not be unreasonably withheld, delayed or
conditioned); provided that if the Indemnifying Party fails to
participate in or assume the defense within 15 days after receiving
notice of the action, the Indemnifying Party is bound by any
determination made in the action or by any compromise or settlement
made by the other party.
(d) The provisions of this Section 12 shall survive termination of this
Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
the Trust except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Trust in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of PFPC's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFPC' material and uncured breach of this Agreement, willful
misfeasance, bad faith, gross negligence or reckless disregard of such
duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
shall not be liable for losses, delays, failure, errors, interruption
or loss of data occurring
directly or indirectly by reason of circumstances beyond its
reasonable control, including without limitation acts of God; action
or inaction of civil or military authority; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor disputes;
civil commotion; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities; insurrection;
elements of nature; or non-performance by a third party (unless such
third party was engaged by PFPC); provided that PFPC has adopted and
implemented a commercially reasonable Disaster Recovery Plan; and (ii)
PFPC shall not be under any duty or obligation to inquire into and
shall not be liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information which
PFPC reasonably believes to be genuine.
(e) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable for any consequential, special
or indirect losses or damages, whether or not the likelihood of such
losses or damages was known by PFPC or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary, PFPC shall
have no liability either for (i) any error or omission of any of its
predecessors as servicer on behalf of the Trust or (ii) for any
failure to discover any such error or omission, provided that, once
PFPC has performed the services under this Agreement and in the
ordinary course of performing the services should
reasonably have discovered such an error or omission, PFPC will no
longer be protected under this Section 13(e)(ii) for damages caused by
such failure.
(f) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS. PFPC will perform
the following accounting services with respect to each Fund:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for a Fund (the "Adviser");
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes daily;
(vi) Post to and prepare daily, the general ledger and trial balance;
(vii) Calculate capital gains and losses;
(viii) Determine book-basis net income;
(ix) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of each Fund's Investments in accordance with
the Funds' Valuation Procedures;
(x) Transmit, mail or otherwise make available a copy of the daily
portfolio valuation to the Adviser; PFPC shall provide to the
Fund the Data Repository and Analytics Suite (DRAS) internet
access service;
(xi) Compute net asset value;
(xii) 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 SEC on Form
N-SAR;
(C) the Trust's annual, semi-annual and quarterly, if any,
shareholder reports;
(D) registration statements on Form N-1A and other filings
relating to the registration of shares;
(E) the Administrator's monitoring of the Trust's status as
a regulated investment company 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.
15. FAIR VALUE SERVICES [Intentionally Omitted.]
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above and
unless terminated pursuant to its terms shall continue for a period of
three (3) years (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Trust or PFPC provides written notice to the
other party of its intent not to renew or unless otherwise terminated
as provided herein. Such notice must be received not less than sixty
(60) days prior to the expiration of the Initial Term or the then
current Renewal Term.
(c) In the event of termination, all reasonable expenses associated with
movement of records and materials and conversion thereof to a
successor accounting agent will be borne by the Trust and paid to PFPC
prior to any such conversion.
(d) This Agreement may be terminated (i) by mutual agreement of the
parties or (ii) for "cause" upon the provision of sixty (60) days
advance written notice by the party alleging cause. For purposes of
this Agreement, "cause" shall mean (i) a material breach of this
Agreement that has not been remedied for thirty (30) days following
written notice of such breach from the non-breaching party; (ii) a
final finding or determination of fault or culpability the party not
alleging cause (the "Affected Party") or its affiliates following
formal proceedings against said Affected Party or its affiliates by
the SEC, NASD, or any federal or state regulatory body, which finding
or determination, relates to or affects PFPC's or the Trust's
obligations under this Agreement, if the party seeking termination
reasonably determines that such finding or determination, or the facts
on which such finding or determination are based (A) has a material
likelihood of preventing or materially and adversely impacting PFPC's
or the Trust's performance of, or ability to perform, its obligations
under this Agreement or (B) relates to or involves criminal or
unethical behavior in the conduct of the Affected Party's conduct of
services to be provided by this Agreement; (iii) a final, unappealable
judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty or criminal or unethical
behavior in the conduct of its business; or (iv) financial
difficulties on the part of the party to be terminated which 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. PFPC shall not
terminate this Agreement pursuant to clause (i) above based solely on
the Trust's failure to pay an amount to PFPC which is the subject of a
bond fide good faith dispute, if (A) the Trust is attempting in good
faith to resolve such dispute with as much expediency as may be
possible under the circumstances, and (B) the Trust continues to
perform its obligations hereunder in all other material respects
(including paying all fees and expenses not subject to such a dispute
hereunder); and (C) promptly upon resolution of such a dispute, the
Trust promptly pays PFPC the amount mutually agreed was due PFPC, if
any.
(e) Notwithstanding anything contained in this Agreement to the contrary,
should a merger, acquisition, change in control, re-structuring,
re-organization result in the Trust's desire to cease to use PFPC as
the provider of the services set forth hereunder in favor of another
service provider prior to the expiration of the then current Initial
or Renewal Term, PFPC shall make a good faith effort to facilitate a
conversion of services to the Trust's successor service provider,
however, there can be no guarantee that PFPC will be able to
facilitate such a conversion of services on the conversion date
requested by the Trust. In connection with the foregoing and prior to
such conversion to the successor service provider, the payment of all
fees to PFPC as set forth herein shall be accelerated to a date prior
to the conversion or termination of services and calculated as if the
services had remained with PFPC until the expiration of the then
current Initial or Renewal
Term and calculated at the asset and/or Shareholder account levels, as
the case may be, on the date notice of termination was given to PFPC.
18. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as PFPC may inform the Trust in writing); (b) if to the Trust, at
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, XX 00000, Attention:
President (or such other address as the Trust may inform PFPC in writing)or
(c) if to neither of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been
given immediately. If notice is sent by first-class mail, it shall be
deemed to have been given three days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it is
delivered.
19. AMENDMENTS. No amendment to this agreement will be valid unless made in
writing and executed by both parties hereto.
20. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or of
The PNC Financial Services Group, Inc., provided that PFPC gives the Trust
thirty (30) days' prior written notice of such assignment or delegation.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the Trust
agrees not to make any modifications to its registration statement or
adopt any policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written approval
of PFPC, which approval shall not be unreasonably withheld or delayed.
(b) During the term of this Agreement and for one year thereafter, the
Trust shall not knowingly solicit or recruit for employment or hire
any of PFPC's employees. To "knowingly" solicit, recruit or hire
within the meaning of this provision does not include, and therefore
does not prohibit, solicitation, recruitment or hiring of a PFPC
employee by the Trust if PFPC employee was identified by such entity
solely as a result of PFPC employee's response to a general
advertisement by such entity in a publication of trade or industry
interest or other similar general solicitation by such entity.
(c) Except as expressly provided in this Agreement, PFPC hereby disclaims
all representations and warranties, express or implied, made to the
Fund or any other person, including, without limitation, any
warranties regarding quality, suitability, merchantability, fitness
for a particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any goods
provided incidental to services provided under this Agreement. PFPC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(d) This Agreement embodies the entire agreement and understanding between
the
parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, provided that the parties may
embody in one or more separate documents their agreement, if any, with
respect to delegated duties. The captions in this Agreement are
included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their
construction or effect. Notwithstanding any provision hereof, the
services of PFPC are not, nor shall they be, construed as constituting
legal advice or the provision of legal services for or on behalf of
the Trust or any other person.
(e) This Agreement shall be deemed to be a contract made in Massachusetts
and governed by Massachusetts law, without regard to principles of
conflicts of law.
(f) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(g) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(h) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of PFPC's
affiliates are financial institutions, and PFPC may, as a matter of
policy, request (or may have already requested) the Trust's name,
address and taxpayer identification number or other government-issued
identification number, and, if
such party is a natural person, that party's date of birth. PFPC may
also ask (and may have already asked) for additional identifying
information, and PFPC may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data elements.
(i) PFPC, or an affiliate of PFPC, shall maintain for PFPC a fidelity bond
covering larceny and embezzlement and an insurance policy with respect
to directors and officers and errors and omissions coverage of not
less than $25 million. Upon the request of the Trust, PFPC shall
provide evidence that coverage is in place. PFPC shall notify the
Trust should the insurance coverage with respect to professional
liability errors and omissions and fidelity bond coverage be canceled.
PFPC shall notify the Trust of any material claims against it with
respect to service performed under this Agreement.
(j) The parties expressly agree that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Trust personally, but
shall bind only the trust property of the Trust. The execution and
delivery of this Agreement have been authorized by the Trustees, and
this Agreement has been signed and delivered by an authorized officer
of the Trust, acting as such, and neither such authorization by the
Trustees nor such execution and delivery by such officer shall be
deemed to have been made by any of them individually or to impose any
liability on them personally, but shall bind only the trust property
of the Trust as provided in the Trust's Declaration of Trust.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
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Name:
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Title:
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BB&T VARIABLE INSURANCE FUNDS
By:
------------------------------------
Name:
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Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of April 23, 2007, is Exhibit A to that certain
Accounting Services Agreement dated as of April 23, 2007 between PFPC Inc. and
BB&T Variable Insurance Funds. This Exhibit A shall supersede all previous forms
of Exhibit A.
Funds
BB&T Capital Manager Equity Variable Insurance Fund
BB&T Large Cap Variable Insurance Fund
BB&T Mid Cap Growth Variable Insurance Fund
BB&T Special Opportunities Variable Insurance Fund
BB&T Total Return Bond Variable Insurance Fund
EXHIBIT B
International Funds
[The remained of this Exhibit has been intentionally left blank]
EXHIBIT C
FOREIGN EQUITY FAIR VALUE PROCEDURES
[TBD]
[The remained of this Exhibit has been intentionally left blank]
