Exhibit 99.B(h)(1)
CO - ADMINISTRATION AGREEMENT
THIS AGREEMENT is made April 1, 2005, by and between VICTORY CAPITAL
MANAGEMENT INC. ("VICTORY"), an Ohio corporation, and The Victory Variable
Insurance Funds, a Delaware statutory trust (the "Trust").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Trust desires to retain VICTORY as a co-administrator of the
Trust to perform certain fund administration services for the Trust and each
investment portfolio of the Trust, as now in existence and listed on Schedule C,
or as hereafter may be established from time to time (individually referred to
herein as the "Fund" and collectively as the "Funds");
WHEREAS, VICTORY is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, the parties hereto wish to enter into this Agreement in order to
set forth the terms under which VICTORY will perform the services set forth
herein for the Trust.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter contained, the parties hereto agree as follows:
1. RETENTION OF VICTORY/ RESPONSIBILITIES OF THE CO-ADMINISTRATOR.
(a) The Trust hereby appoints VICTORY as a co-administrator of the Trust.
BISYS Fund Services Ohio, Inc. ("BISYS") will serve as the other
co-administrator of the Trust pursuant to a separate co-administration agreement
(the "Bisys Co-Administration Agreement") between the Trust and BISYS. VICTORY
and BISYS are referred to herein collectively as the "Co-Administrators."
VICTORY as Co-Administrator will provide the services set forth herein. VICTORY
shall, for all purposes herein, be deemed to be an independent contractor and,
except as otherwise expressly provided or authorized, shall have no authority to
act for or represent the Trust or the Funds in any way, and shall not be deemed
an agent of the Trust or any Funds.
(b) The rights and obligations of each of the Co-Administrators are
several, not joint. VICTORY shall not be responsible for the performance of the
duties and responsibilities of BISYS, nor shall VICTORY be liable for the
actions of BISYS.
2. RESPONSIBILITIES OF VICTORY AS THE CO-ADMINISTRATOR.
VICTORY shall perform the administration services set forth in Schedule A.
VICTORY shall perform such other administration services, and furnish such other
reports, for the Funds that are mutually agreed upon by the parties from time to
time, for which the Trust will pay VICTORY the amounts agreed upon between them.
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VICTORY may, at its expense, utilize agents in its performance of its
services; provided, however, that (i) the approval of the Board of Trustees of
the Trust (the "Board") shall be required to establish an arrangement in which a
sub-agent of VICTORY acts as sub-administrator (a "Sub-Agent"); and (ii) any
agent (including any Sub-Agent) retained by VICTORY shall be the agent of
VICTORY and not the agent the Trust, and VICTORY shall be fully responsible for
the acts of any such agent (or Sub-Agent) and shall not be relieved of any of
its responsibilities hereunder by the appointment of such agent (or Sub-Agent).
In the event that a Sub-Agent is retained by VICTORY at the request or
instruction of the Trust, the foregoing shall not apply to the extent it is
inconsistent with any written agreement(s) entered into by the parties with
respect to such arrangement.
3. ALLOCATION OF CHARGES AND EXPENSES.
VICTORY shall bear its own expenses in connection with the performance of
its duties and responsibilities hereunder, except as provided herein provided,
however, that the Trust shall reimburse VICTORY for its reasonable travel and
related expenses incurred in attending Board meetings. VICTORY shall also
furnish at its own expense the executive, supervisory and clerical personnel
necessary to perform its obligations under this Agreement. VICTORY shall pay all
compensation, if any, of officers of the Trust who are its own officers,
employees or directors or who are officers employees or directors of its
affiliated entities. Unless otherwise specifically provided herein, VICTORY
shall not be obligated to pay the compensation of any employee or agent of the
Trust (who is not an officer employee or director of the VICTORY or its
affiliated entities) retained by the Board.
The Trust will pay or cause to be paid any other expenses incurred in the
operation of the Funds that are not otherwise allocated herein (or subject to
another contractual arrangement between the parties or are to be paid under the
Bisys Co-Administration Agreement), including, without limitation, Fund
organization costs, taxes, expenses for Fund legal and auditing services, costs
of maintaining corporate existence, the expenses of preparing (including
typesetting), printing and mailing reports, prospectuses, statements of
additional information, proxy solicitation material and notices to existing
Shareholders, all expenses incurred in connection with issuing and redeeming
shares of beneficial interest in the Funds ("Shares"), the cost of custodial
services, transfer and dividend disbursing agents' fees, fund accounting agents'
fees, the cost of initial and ongoing registration of the Shares under Federal
and state securities laws, fees and out-of-pocket expenses of Trustees who are
not affiliated persons of VICTORY or any affiliate of VICTORY, Trust meetings,
insurance, interest, brokerage costs, and commissions, if any, litigation and
other extraordinary or nonrecurring expenses, and all fees and charges of
investment advisers.
4. COMPENSATION OF VICTORY
(a) The Trust shall pay VICTORY for its respective services to be provided
under this Agreement the fees set forth in the fee schedule set forth in
Schedule B. For purposes of determining fees, the value of each Fund's net
assets shall be computed in accordance with the terms of the Fund's Prospectus.
Such fee as is attributable to each
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Fund shall be a separate (and not joint or joint and several) obligation of each
such Fund. No individual Fund shall have any responsibility for any obligation,
if any, with respect to any other Fund arising out of this Agreement.
In addition, the Trust shall also reimburse VICTORY for all of its
reasonable out-of-pocket expenses.
(b) If this Agreement becomes effective subsequent to the first day of a
month or terminates in accordance with its terms before the last day of a month,
VICTORY's compensation for that part of the month in which this Agreement is in
effect shall be prorated in a manner consistent with the calculation of the fees
as set forth on Schedule B.
(c) All rights of compensation under this Agreement for services performed
as of the termination date shall survive the termination of this Agreement.
5. TERM.
(a) This Agreement becomes effective on the date first set forth above
(the "Effective Date"). Upon the Effective Date, the services, compensation and
expense provisions of this Agreement shall become fully effective. This
Agreement shall continue in effect for a period of two years from the Effective
Date, until October 31, 2007 (the "Initial Term"). Thereafter, unless otherwise
terminated as provided herein, this Agreement shall be renewed automatically for
successive one year periods ("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 Trusts Board of Trustees or a
majority of the outstanding voting securities of such Fund. This Agreement may
be terminated (i) by provision of a written notice of non-renewal at least sixty
(60) days prior to the end of the Initial Term or any Rollover Period, as the
case may be, or (ii) by mutual agreement of the parties (iii) for "cause," as
defined below, upon the provision of sixty (60) days advance written notice by
the party alleging cause. In addition, the Trust may terminate this Agreement
upon written notice to VICTORY in the event that the Bisys Co-Administration
Agreement has terminated; provided, however, that such termination will be
subject to payment of liquidated damages pursuant to Section 5(d) of this
Agreement.
(b) For purposes of this Section 5, "Cause" shall mean (i) a material
breach of this Agreement, including a material breach of any representations and
warranties contained herein, that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (ii) 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 (iii) 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 (Bankruptcy) of
the
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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. VICTORY shall not terminate this Agreement pursuant to clause (i)
above based solely upon the Trust's failure to pay an amount to VICTORY which is
the subject of a good faith dispute, if (x) the Trust is attempting in good
faith to resolve such dispute with as much expediency as may be possible under
the circumstances, and (y) the Trust continues to perform its obligations
hereunder in all other material respects (including paying all fees and expenses
not subject to reasonable dispute hereunder).
(c) Notwithstanding the foregoing termination provisions, following any
such termination, in the event that VICTORY 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 compensation and
indemnification, shall continue in full force and effect. Fees and out-of-pocket
expenses incurred by VICTORY but unpaid by the Trust upon such termination shall
be immediately due and payable upon and notwithstanding such termination. In the
event of a termination other than a termination for cause, VICTORY shall be
entitled to collect from the Trust, in addition to the fees and expenses
provided in Sections 3 and 4 of this Agreement, the amount of all of VICTORY's
reasonable cash disbursements in connection with VICTORY's activities in
effecting such termination, including without limitation, the delivery to the
Trust, and/or other parties of the Funds' property, records, instruments and
documents. Subsequent to such termination, for a reasonable fee, VICTORY will
provide the Trust with reasonable access to any Trust documents or records
remaining in its possession.
(d) If for any reason other than (i) non-renewal, (ii) mutual agreement of
the parties, or (iii) "cause" for termination of VICTORY hereunder, VICTORY's
services are terminated hereunder, VICTORY is replaced as a Co-Administrator, or
if a third party is added to perform a substantive portion of the administration
services to be provided by VICTORY under this Agreement (excluding any Sub-Agent
appointed 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 VICTORY equal to the balance that
would be due VICTORY for its services hereunder during (x) the next twelve (12)
months or (y) if less than twelve (12) months remain until the end of the
then-current term, the number of months remaining in the then-current term,
assuming for purposes of the calculation of the one-time payment that the fees
that would be earned by VICTORY for each month shall be based upon the average
fees payable to VICTORY monthly during the twelve (12) months prior to the date
that services terminate, VICTORY is replaced or a third party is added;
provided, however, that this liquidated damages provision shall not be
applicable to liquidations of individual Funds which may occur from time to time
for legitimate economic or regulatory reasons, as determined by the Board. The
calculation of payments to VICTORY by reference to the period of up to twelve
months contemplated by the preceding sentence shall apply only during this
Agreement's initial two-year term; during any subsequent Rollover Period, the
maximum reference period for such payments shall be six months. For the
avoidance of doubt, the Trust may terminate this Agreement at
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any time upon not less than 60 days' written notice to VICTORY, provided that
the Trust otherwise complies with all applicable provisions of this Agreement,
including, without limitation, the obligation to pay liquidated damages where
applicable.
(e) The one-time cash payment referenced above shall be due and payable on
the day prior to the first day in which services are terminated, VICTORY is
replaced or a third party is added.
(f) In the event the Trust or any Fund 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
VICTORY is not retained to provide administration services consistent with this
Agreement to the successor fund or funds, if any.
(g) The parties further acknowledge and agree that, in the event services
are terminated, VICTORY is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by VICTORY would be
extremely difficult, and (ii) the liquidated damages provision contained herein
is intended to adequately compensate VICTORY for damages incurred and is not
intended to constitute any form of penalty.
6. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY.
VICTORY shall use reasonable professional diligence in the performance of
services under this Agreement, but shall not be liable to the Trust for any
action taken or omitted by it in the absence of bad faith, willful misfeasance,
negligence or reckless disregard by it of its obligations and duties. The duties
of VICTORY shall be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against VICTORY hereunder.
VICTORY shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, VICTORY 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, VICTORY does not assume any
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. Events beyond VICTORY's reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, VICTORY shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption.
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VICTORY shall provide the Trust, at such times as the Trust may reasonably
request, copies of reports rendered by independent public accountants on its
internal controls and procedures relating to the services provided by it under
this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL VICTORY, ITS AFFILIATES OR ANY OF ITS OR ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, INDIRECT
OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR
WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. LEGAL ADVICE.
VICTORY shall notify the Trust at any time VICTORY believes that it is in
need of the advice of counsel to the Trust with regard to VICTORY's
responsibilities and duties pursuant to this Agreement. The Trust may authorize
counsel to the Trust to give such advice to VICTORY; provided, however, this
Agreement shall not obligate counsel to the Trust to give any such advice, and
counsel to the Trust is free to decline to provide such advice for any reason or
for no reason. To the extent that counsel to the Trust provides any such written
advice, which advice will be at the Trust's expense, VICTORY may rely on such
advice. VICTORY may rely upon any other written advice provided by any other
counsel, accountant or other expert authorized in writing by the Trust to
provide such advice to VICTORY, which authorization will not be unreasonably
withheld or delayed. In no event shall VICTORY be liable to the Trust or any
Fund or any shareholder or beneficial owner of the Trust for any action
reasonably taken pursuant to written advice provided by an expert explicitly
authorized by the Trust. In the event that the Trust does not authorize such
other expert to provide advice to VICTORY, VICTORY may, at its own cost and at
its own risk, obtain its own legal advice from its own counsel or other experts.
As to the services to be provided hereunder, this Agreement sets forth the
terms and conditions under which the services described herein are to be
performed. To the extent of any inconsistency between this Agreement and any
description, if any, of the services to be provided hereunder that may be
contained in the Prospectuses and Statement of Additional Information of the
Trust relating to the relevant Funds, VICTORY may rely on the description
contained in that Prospectus or Statement of Additional Information unless
VICTORY receives written instructions to the contrary in a timely manner from
the Trust.
8. INSTRUCTIONS / CERTAIN PROCEDURES, ETC.
VICTORY shall be protected in acting upon any document that it reasonably
believes to be genuine and to have been signed or presented by a duly authorized
person on behalf of the Trust. Unless VICTORY is otherwise aware, VICTORY will
not be held
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to have notice of any change of authority of any officers, employees or agents
of the Trust or the Adviser until receipt of actual notice thereof from the
Trust.
In performing the Services, VICTORY may rely conclusively upon the terms of
the Prospectuses and Statement of Additional Information of the Trust relating
to the relevant Funds, as well as the minutes of Board meetings (if applicable)
and other records of the Trust. VICTORY shall be protected in acting upon any
document which it reasonably believes to be genuine and to have been signed or
presented by the proper person or persons, excluding VICTORY employees.
9. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless VICTORY, and its employees,
agents, directors, officers and nominees from and against any claims, demands,
actions, suits, judgments, liabilities, losses, damages, costs, charges, counsel
fees and other expenses including reasonable investigation expenses
(collectively, "Losses") resulting directly and proximately from VICTORY's
performance of services under this Agreement or based, if applicable, upon its
reasonable reliance on information, records, instructions or requests pertaining
to services hereunder, that are given or made to it by the Trust, or other
authorized agents of the Trusts with which VICTORY must interface in providing
services; provided that this indemnification shall not apply to actions or
omissions of VICTORY involving bad faith, willful misfeasance, negligence or
reckless disregard by it of its obligations and duties.
VICTORY shall indemnify, defend, and hold the Trust, and its directors,
officers, agents and nominees harmless from and against Losses resulting
directly and proximately from VICTORY's willful misfeasance, bad faith or
negligence in the performance of, or the reckless disregard of, its duties or
obligations 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 provided that any such advanced expenses shall be reimbursed by the
indemnified party if an ultimate determination is made on the merits by a court
or other tribunal of competent jurisdiction that the indemnified party is not
entitled to indemnification hereunder. 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
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 together with all facts pertinent to the situation, 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. As to any
matter eligible for indemnification, an indemnified party shall act reasonably
and in accordance with good faith business judgment and shall not effect any
settlement or confess judgment without the consent of the indemnifying party,
which consent shall not be withheld or delayed unreasonably.
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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 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 withheld or delayed unreasonably. 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. An indemnifying party shall not effect any settlement without
the consent of the indemnified party (which shall not be withheld or delayed
unreasonably by the indemnified party) unless such settlement imposes no
liability, responsibility or other obligation upon the indemnified party and
does not express, imply or impute fault to the indemnified party. 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.
10. RECORD RETENTION AND CONFIDENTIALITY.
VICTORY shall keep and maintain all books and records which are customary
or which are required to be kept in connection with VICTORY's services pursuant
to applicable statutes, rules and regulations, including without limitation
Rules 31a-1 and 31a-2 under the 1940 Act. VICTORY further agrees that all such
books and records shall be the property of the Trust. VICTORY shall surrender
such documents promptly to the Trust on request, and make them available for
inspection by the Trust, or by the Commission upon demand.
VICTORY shall otherwise keep confidential all books and records relating to
the Trust and its shareholders, except when (i) disclosure is required by law,
(ii) VICTORY is advised by counsel that it may incur liability for failure to
make a disclosure, (iii) VICTORY is requested to divulge such information by a
court, governmental agency or entity or by a self-regulatory organization
registered under the Securities Exchange Act of 1934, or (iv) as requested or
authorized by the Trust (including pursuant to its policies and procedures).
VICTORY shall provide the Trust with reasonable advance notice of disclosure
pursuant to items (i) - (iii) of the previous sentence, to the extent reasonably
practicable.
11. RETURN OF RECORDS.
VICTORY shall promptly upon the Trust's demand, turn over to the Trust and
cease to retain the files, records and documents created and maintained by it
pursuant to this Agreement which are no longer needed by it in the performance
of its services or for its legal protection.
12. REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to VICTORY that:
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(a) The Trust is a trust duly incorporated and validly existing under
the laws of its state of organization, and has full capacity and
authority to enter into this agreement and to carry out its
obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to
carry out its business as currently conducted;
(c) It is in compliance in all material respects with all laws and
regulations applicable to its business and operations;
(d) 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 right and remedies of creditors and
secured parties.
13. REPRESENTATIONS AND WARRANTIES OF VICTORY.
VICTORY represents and warrants to the Trust that:
(a) It is a corporation duly incorporated and validly existing under
the laws of the state of its organization, and has full capacity and
authority to enter into this agreement and to carry out its
obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to carry
out its business as currently conducted;
(c) It is, and shall continue to be, in compliance in all material
respects with all provisions of law applicable to it in connection
with its services hereunder;
(d) The various procedures and systems which it has implemented with
regard to safekeeping from loss or damage attributable to fire, theft
or any other cause of the blank checks, records, and other data and
its' equipment, facilities, and other property used in the performance
of its obligations hereunder are reasonable and adequate and that it
will make such changes therein from time to time as are reasonably
required for the secure performance of its obligations hereunder; and
(e) This Agreement has been duly authorized by it and, when executed
and delivered by it, will constitute a legal, valid and binding
obligation of it, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the right and remedies of
creditors and secured parties.
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(f) It will maintain sufficient and experienced personnel and an
adequate infrastructure to enable it to perform its obligations
hereunder.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, 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) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY VICTORY ARE COMPLETELY DISCLAIMED.
14. INSURANCE.
VICTORY 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. Upon the request of the Trust, VICTORY shall provide
evidence that coverage is in place. VICTORY shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be reduced or canceled. Such notification shall include the
date of cancellation or reduction and the reasons therefore. VICTORY shall
notify the Trust promptly 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 promptly should the total outstanding
claims made by VICTORY under its insurance coverage materially impair, or
threaten to materially impair, the adequacy of its coverage.
15. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust will furnish to VICTORY the following upon request:
(i) A copy of the Trust's Certificate of Trust and any
amendments thereto;
(ii) A copy of the Trust's By-laws and any amendments thereto;
(iii) A copy of the resolutions of the Board regarding (A)
approval of this Agreement and authorization for the Trust to instruct
VICTORY hereunder; and (B) authorization of VICTORY to act as
Co-administrator for the Trust;
(iv) A certified list of all officers of the Funds, including
the Funds' AML Compliance Officer, and any other persons together with
specimen signatures of those officers and other persons who (except as
otherwise provided herein to the contrary) shall be authorized to
instruct VICTORY in all matters. Any delay in delivery of this list
shall not relieve the Co-Administrator of any actual knowledge it may
possess of any
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change in authority of persons authorized to provide instructions to
VICTORY;
(v) A copy of the AML Program, including any related policies
and procedures;
(vi) The Trust's most recent Post-Effective Amendment to its
Registration Statement(s) under the Securities Act of 1933, as amended
(the "1933 Act"), and under the 1940 Act, on Form N-1A as filed with
the Securities and Exchange Commission (the "Commission") relating to
the Shares and any further amendment thereto;
(vii) Notification of registration of the Trust under the 1940
Act on Form N-8A as filed with the Commission;
(viii) Prospectuses and Statements of Additional Information of
the Trust with respect to the Funds (such prospectuses and statements
of additional information, as presently in effect and as they shall
from time to time be amended and supplemented, herein called
individually, the "Prospectus" and collectively, the "Prospectuses");
and
(ix) The Trust DCPs (as hereinafter defined).
(b) The Trust shall furnish VICTORY written copies of any amendments
to, or changes in, any of the items referred to in Section 15(a) hereof,
forthwith upon such amendments or changes becoming effective. In addition,
the Trust agrees that no amendments will be made to the AML Program, or the
Trust DCPs which might have the effect of changing the procedures employed
by VICTORY in providing the services agreed to hereunder or which amendment
might affect the duties of VICTORY hereunder unless the Trust first obtains
VICTORY's approval of such amendments or changes, which approval shall not
be withheld unreasonably.
(c) VICTORY may rely on all documents furnished to it by the Trust
and its agents in connection with the services to be provided under this
Agreement, including any amendments to or changes in any of the items to be
provided by the Trust pursuant to Section 15(a), and shall be entitled to
indemnification in accordance with Section 9 below with regard to such
reliance.
(d) The Trust represents and warrants that (A) the provision of
certain officers of the Trust by VICTORY, as provided in Section 17 of this
Agreement, has been approved by the Board, and (B) each of the individuals
nominated by VICTORY as the Trust's AML Compliance Officer or Financial
Officer has been approved and appointed as an officer of the Trust by the
Board.
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(e) VICTORY shall be deemed to have received any document with
respect to the Trust that is filed with the SEC and available on XXXXX,
unless the Trust files such document without VICTORY's knowledge.
16. INFORMATION FURNISHED BY VICTORY.
VICTORY will furnish to the Trust upon request, evidence of the approval of
this Agreement by VICTORY, and authorization of a specified officer of VICTORY
to execute and deliver this Agreement;
17. COMPLIANCE WITH LAWS PROVISION OF EXECUTIVE OFFICERS.
(a) PROSPECTUS AND PUBLIC OFFERING. Except for information VICTORY is
obligated to keep pursuant to Section 10 hereof and as
specifically provided in the schedules hereto, the Trust assumes
full responsibility for the preparation, contents, and
distribution of each Prospectus of the Trust in compliance with
all applicable requirements of the Securities Act of 1933, as
amended (the "1933 Act"), the 1940 Act, and any other laws, rules
and regulations of governmental authorities having jurisdiction.
VICTORY shall have no obligation to take cognizance hereunder of
laws relating to the sale of the Trust's shares. The Trust
represents and warrants that all shares of the Trust that are
offered to the public are covered by an effective registration
statement under the 1933 Act and the 1940 Act.
(b) ANTI-MONEY LAUNDERING PROVISIONS. The Trust acknowledges that it
is a financial institution subject to the law entitled Uniting
and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of
2001 and the Bank Secrecy Act and shall comply with the such Acts
and applicable regulations adopted thereunder (such Acts and
regulations collectively, the "Applicable AML Laws") in all
relevant respects, subject to the delegation of certain
responsibilities to VICTORY.
(c) PROVISION OF CERTIFYING OFFICER
Subject to the provisions of this Section 17(d) and Section 17(e)
below, VICTORY shall make a VICTORY employee available to the
Trust to serve, upon designation as such by the Board, as the
Principal Executive officer of the Trust or under such other
title to perform similar functions (a "Certifying Officer").
VICTORY's obligation in this regard shall be met by providing an
appropriately qualified employee of VICTORY (or its affiliates)
who, in the exercise of his or her duties to the Trust, shall act
in good faith and in a manner
12
reasonably believed by him or her to be in the best interests of
the Trust. VICTORY shall select, and may replace, the specific
employee that it makes available to serve in the designated
capacity as a Certifying Officer, in VICTORY's reasonable
discretion, taking into account such person's responsibilities
concerning, and familiarity with, the Trust's operations.
For so long as VICTORY provides a Certifying Officer, (a) there
shall be a DCP Committee (as defined below), and (b) the Trust's
disclosure and control procedures (the "Trust DCPs") shall
contain (or the Trust and VICTORY shall otherwise establish)
mutually agreeable procedures governing the certification of Form
N-CSR, Form N-Q, and any other forms required to be certified
pursuant to Sections 302 or 906 of the Xxxxxxxx-Xxxxx Act of
2002, Rule 30a-2 under the 1940 Act, or any other related law or
regulation (collectively, "SO Laws" and such forms, collectively,
"Reports"), and the parties shall comply with such procedures in
all material respects. Among other things, the procedures shall
provide as follows:
(i) The Co-Administrators shall establish and maintain a
Disclosure Controls and Procedures Committee (the "DCP
Committee") to evaluate the Trust DCPs in accordance
with Rule 30a-3 under the 1940 Act. The DCP Committee
shall include (at a minimum) the Trust's Principal
Executive Officer, Chief Financial Officer, and Chief
Legal Officer (if any) and such other individuals as
may be necessary or appropriate to enable the DCP
Committee to ensure the cooperation of, and to oversee,
each of the Trust's agents that records, processes,
summarizes, or reports information contained in Trust
Reports (or any information from which such information
is derived), including the Funds' investment advisors,
custodians, and other service providers to the Trust or
any Fund ("Other Providers"). The Co-Administrators may
from time to time request appropriate approvals from
the Board with respect to the DCP Committee.
(ii) The Trust shall require (A) that sub-certifications on
internal controls, upon which the Certifying Officer
may rely in certifying Reports, be provided by Other
Providers in form and content reasonably acceptable to
the Certifying Officer and consistent with the SO Laws,
and (B) that such sub-certifications are delivered to
the DCP Committee and the Certifying Officer
sufficiently in advance of the DCP Committee meeting
described in (iii) below. VICTORY shall obtain such
sub-certifications from such Other Providers.
13
(iii) The DCP Committee shall (A) establish a schedule to
ensure that all required disclosures in any Report,
including the financial statements, for the Trust are
identified and prepared in a timeframe sufficient to
allow review, (B) meet prior to the filing date of each
Report to review the accuracy and completeness of the
relevant Report, and (C) record its considerations and
conclusions in a written memorandum sufficient to
support conclusions pertaining to Trust DCPs as
required by the instructions to Form N-CSR or Form N-Q.
In conducting its review and evaluations, the DCP
Committee shall:
A. review SAS 70 reports pertaining to VICTORY and Other
Providers, if applicable, or in the absence of any such
reports, consider the adequacy of the
sub-certifications supplied by the service provider. In
cases where the SAS 70 report is dated more than 90
days prior to the issuance of a Report, the DCP
Committee shall request a written representation from
the service provider regarding the continued
application and effectiveness of internal controls
described in the report, or descriptions of any changes
in internal control structure, as of the date of the
representation;
B. consider whether there are any significant deficiencies
or material weaknesses in the design or operation of
the Trust DCPs or internal controls over financial
reporting that could adversely affect the Trust's
ability to record, process, summarize, and report
financial information, and in the event that any such
weaknesses or deficiencies are identified, disclose
them to the Trust's Certifying Officers, audit
committee, and auditors;
C. consider whether, to the knowledge of any member of the
DCP Committee, there has been or may have been any
fraud, whether or not material, and, if so, disclose to
the Certifying Officers, and the Trust's audit
committee and auditors; and
D. determine whether there was any change in internal
controls over financial reporting that occurred during
the Trust's second quarter of the period covered by the
Report for Reports on Form N-CSR or during the most
recent fiscal quarter for Reports on Form N-Q that has
materially affected or is reasonably likely to
materially affect, the Trust's internal control over
financial reporting.
A Certifying Officer shall have the full discretion to decline to certify
("Certification") a particular Report that fails to meet the standards set forth
in the
14
Certification, and to report matters involving fraud or other failures to meet
the standards of applicable law to the audit committee of the Board.
The Trust shall, in its own capacity, take all reasonably necessary and
appropriate measures to comply with its obligations under SO Laws. Without
limitation of the foregoing, except for those obligations which are expressly
delegated to or assumed by VICTORY in this Agreement, the Trust shall maintain
responsibility for, and shall support and facilitate the role of each Certifying
Officer and the DCP Committee in, designing and maintaining the Trust's DCPs in
accordance with applicable laws.
(d) ADDITIONAL PROVISIONS CONCERNING EXECUTIVE OFFICERS
It is mutually agreed and acknowledged by the parties that any
Certifying Officer provided by VICTORY under the provisions of
this Section 17 will be executive officers of the Trust
("Executive Officers"). In addition, the parties agree that an
AML Compliance Officer shall be considered an Executive Officer
of the Trust for purposes of this Section 17(d). The provisions
of Sections 17(c) - (d) are subject to the internal policies of
VICTORY concerning the activities of its employees and their
service as officers of funds (the "VICTORY Policies"), a copy of
which shall be provided to the Trust upon request. The Trust's
governing documents (including its Agreement and Declaration of
Trust and By-Laws) and/or resolutions of the Board shall contain
mandatory indemnification provisions that are applicable to each
Executive Officer, that are designed and intended to have the
effect of fully indemnifying him or her and holding him or her
harmless with respect to any claims, liabilities and costs
arising out of or relating to his or her service in good faith in
a manner reasonably believed to be in the best interests of the
Trust, except to the extent he or she would otherwise be liable
to the Trust by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of his or her office.
The Trust shall provide coverage to each Executive Officer under
its directors and officers liability policy that is appropriate
to the Executive Officer's role and title, and consistent with
coverage applicable to other officers holding positions of
executive management.
In appropriate circumstances, each Executive Officer shall have
the discretion to resign from his or her position, in the event
that he or she reasonably determines that there has been or is
likely to be (a) a material deviation from the VICTORY Policies;
(b) a violation of SO Laws, Applicable AML Laws, or Federal or
state securities laws and regulations applicable to the Trust
("Applicable Securities Laws"), or (c) a material deviation by
the Trust from the terms of this Agreement governing the services
of such Executive Officer that (in either case) is not primarily
caused by the failure of such
15
Executive Officer or VICTORY to meet their own obligations under
applicable laws and this Agreement. In addition, each Executive
Officer shall have reasonable discretion to resign from his or
her position in the event that he or she determines that he or
she has not received sufficient cooperation from the Trust or its
Other Providers to make an informed determination regarding any
of the matters listed above.
Each Executive Officer may, and the Trust shall, promptly notify
VICTORY of any issue, matter or event that would be reasonably
likely to result in any claim by the Trust, the Trust's
shareholders or any third party which involves an allegation that
any Executive Officer failed to exercise his or her obligations
to the Trust in a manner consistent with applicable laws
(including but not limited to any claim that a Report failed to
meet the standards of SO Laws and other applicable laws).
Notwithstanding any provision of the Agreement that expressly or
by implication provides to the contrary, (a) it is expressly
agreed and acknowledged that VICTORY cannot ensure that the Trust
complies with Applicable AML Laws, the Applicable Securities Laws
or SO Laws, and (b) whenever an employee or agent of VICTORY
serves as an Executive Officer of the Trust, as long as such
Executive Officer acts in good faith and in a manner reasonably
believed to be in the best interests of the Trust (and would not
otherwise be liable to the Trust by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his or her office), the
Trust shall indemnify the Executive Officer and VICTORY and hold
the Executive Officer and VICTORY harmless from any loss,
liability, expenses (including reasonable attorneys fees) and
damages incurred by them arising out of or resulting to the
service of such Employee/Executive Officer as an Executive
Officer of the Trust.
18. 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, to it c/o Victory Capital Management,
Inc., Investment Products Group, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 Attn:
Xxxxxxxx X. Xxxxxx, with a copy to Xxx X. Xxxxx, Esq. Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 and a copy to Xxxx Xxxxxxxxx,
Xx. V.P. and Managing Counsel, KeyBank N.A., 000 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx, XX 00000-0000, Mail Code: OH-01-27-0200; and if to BISYS, to it at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000;
16
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.
19. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Section 19 shall not limit or in any way affect VICTORY's
right to appoint a Sub-Agent 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.
20. GOVERNING LAW.
This Agreement shall be governed by and provisions shall be construed in
accordance with the laws of the State of Ohio and the applicable provisions of
the 1940 Act. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control.
21 ACTIVITIES OF ADMINISTRATORS.
The services of the Administrators rendered to the Trust hereunder are not
to be deemed to be exclusive. VICTORY 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 VICTORY, as officers, employees or otherwise and that partners,
officers and employees of VICTORY and its counsel are or may be or become
similarly interested in the Trust, and that VICTORY may be or become interested
in the Trust as a Shareholder or otherwise.
22. PRIVACY.
Nonpublic personal financial information relating to consumers or customers
of the Trust provided by, or at the direction of the Trust to VICTORY, or
collected or retained by VICTORY in the course of performing its duties as
co-administrator, shall be considered confidential information. VICTORY shall
not give, sell or in any way transfer such confidential information to any
person or entity, other than affiliates of VICTORY involved in servicing the
Funds except at the direction of the Trust or the Funds or as required or
permitted by law. VICTORY represents, warrants and agrees that it has in place
and will 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 or customers of the Funds. The Trust represents to VICTORY that the
Trust has adopted a Statement of its privacy policies and practices as required
by the Commission's Regulation S-P and agrees to provide VICTORY with a copy of
that statement annually.
23. MISCELLANEOUS.
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this
Agreement.
17
(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.
(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.
(d) No provision of this Agreement may be changed, waived,
discharged, or terminated except by an instrument in writing
signed by the parties to this Agreement. For special cases, the
parties hereto may amend such procedures set forth herein as may
be appropriate or practical under the circumstances, and VICTORY
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. In addition, the Trust agrees that no amendments
will be made to the Prospectuses or Statement of Additional
Information of the Trust, the AML Program, or the Trust DCPs
which might have the effect of changing the procedures employed
by VICTORY in providing the services agreed to hereunder or which
amendment might affect the duties of VICTORY hereunder unless the
Trust first obtains VICTORY's approval of such amendments or
changes, which approval shall not be withheld unreasonably.
(e) It is expressly agreed 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 Board, and this Agreement has been signed and
delivered by an authorized officer of the Trust, acting as such,
and neither such authorization by the Board 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 any of
them personally, but shall bind only the trust property of the
Trust as provided in the Certificate of Trust.
(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. .
(g) The names "The Victory Variable Insurance Funds" and "Trustees of
The Victory Variable Insurance Funds" refer respectively to the
Trust created and the Trustees, as trustees but not individually
or
18
personally, acting from time to time under a Certificate of Trust
filed on December 21, 1995 at the office of the Secretary of
State of the State of Delaware which is hereby referred to and is
also on file at the principal office of the Trust.
(h) Every reference to a Fund will be deemed a reference solely to
the particular Fund (as set forth in Schedule C, as may be
amended from time to time). Under no circumstances shall the
rights, obligations or remedies with respect to a particular Fund
constitute a right, obligation or remedy applicable to any other
Fund. In particular, and without otherwise limiting the scope of
this paragraph, VICTORY shall not have any right to set off
claims of a Fund by applying property of any other Fund.
24. Rights of Ownership.
All computer programs, systems and procedures employed or developed by
VICTORY, or on behalf of VICTORY by system providers or vendors used by VICTORY,
to perform services required to be provided by VICTORY under this Agreement are
the property of VICTORY. All records and other data maintained hereunder,
excepting such computer programs, systems and procedures, are the exclusive
property of the Trust. All such records and other data which is the property of
the Trust shall be furnished to the Trust in appropriate form as soon as
practicable after termination of this Agreement for any reason.
19
* * * * *
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 VARIABLE INSURANCE FUNDS
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
---------------------------------
Title: President
---------------------------------
VICTORY CAPITAL MANAGEMENT INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: CAO
----------------------------------
20
SCHEDULE A
TO THE CO-ADMINISTRATION AGREEMENT
BETWEEN THE VICTORY VARIABLE INSURANCE FUNDS AND VICTORY
CAPITAL MANAGEMENT INC.
CO-ADMINISTRATION SERVICES TO BE PROVIDED BY VICTORY
1. Coordinate, subject to review by counsel to the Trust, (i) the
annual update to the Trust's registration statement on Form N-1A,
(ii) other amendments to the Trust's registration statement and
supplements to its Prospectus and Statement of Additional
Information, and (iii) Notices of Annual or Special Meetings of
shareholders of the Trust and proxy materials relating thereto,
and file same with the Securities and Exchange Commission (the
"SEC") upon the request of the Trust or counsel to the Trust;
2. Coordinate with the other co-administrator the preparation of,
with the assistance and approval of counsel and officers of the
Trust, drafts of communications to shareholders of record of the
Funds ("Shareholders"), including the annual report to
Shareholders and prepare drafts of the certified semi-annual
report for each Fund;
In connection with the foregoing, the Trust shall assist and
cooperate with VICTORY (and shall use its best efforts to cause its
officers, investment advisers and other service providers to assist
and cooperate with VICTORY) to facilitate the delivery of
information requested by VICTORY in connection with the preparation
of the Trust's Form N-CSR, including Trust financial statements, so
that VICTORY may submit a draft Report to the Trust's Disclosure
controls and Procedures Committee ("Fund DCP committee") prior to
the date the relevant Report is to be filed. The Certifying
Officers and the Chief Legal Officer (if any) of the Trust shall be
deemed to constitute the Fund DCP Committee in cases in which no
other Fund DCP Committee has been designated or is operative. In
connection with its review and evaluations, the Fund DCP Committee
shall establish a schedule to ensure that all required disclosures
in Form N-CSR and in the financial statements for each Fund are
identified and prepared in a timeframe sufficient to allow review
by the Fund DCP Committee at least 10 days prior to the date the
relevant report is to be filed. At the request of the Trust or its
Certifying Officers, VICTORY shall provide reasonable
administrative assistance to the Trust in connection with obtaining
service provider sub-certifications, SAS-70 reports on internal
controls, and any applicable representations to bring such
certifications current to the end of the reporting period, and in
preparing summaries of issues raised in such documents. The Trust
shall, in its own capacity, take all reasonably necessary and
21
appropriate measures to comply with its obligations under SO Laws.
Without limitation of the foregoing, except for those obligations
which are expressly delegated to or assumed by VICTORY in this
Agreement, the Trust shall maintain responsibility for, and shall
support and facilitate the role of each Certifying Officer and the
Fund DCP Committee in, designing and maintaining the Trust DCPs in
accordance with applicable laws, including (a) ensuring that the
Fund DCP Committee and/or Certifying Officers obtain and review
sub-certifications and reports on internal controls from the
Trust's investment adviser(s) and other service providers, if any,
sufficiently in advance of the date upon which the relevant
financial statements must be finalized by VICTORY (in order to
print, distribute and/or file the same hereunder), (b) evaluation
of the effectiveness of the design and operation of the Trust DCP,
under the supervision, and with the participation of, the
Certifying Officers, within the requisite timeframe prior to the
filing of each Report, and (c) ensuring that its Certifying
Officers render the requisite certifications or take such other
actions as may be permitted or required under applicable laws;
3. Coordinate the distribution of prospectuses, supplements, proxy
materials and reports to Shareholders; and coordinate the
solicitation and tabulation of proxies in connection with the
annual meeting of Shareholders each year, if one is held;
4. Administer contracts on behalf of the Trust with, among others,
the Trust's investment adviser, distributor, custodian, transfer
agent and fund accountant;
5. Assist with the layout and printing of prospectuses and assist
with and coordinate layout and printing of the Funds' semi-annual
and annual reports to Shareholders;
6. Assist with the design, development, and operation of the Funds,
including new classes, investment objectives, policies and
structure;
7. Provide daily and periodic compliance monitoring services
incorporating certain of those procedures, which will include,
among other matters, compliance with investment restrictions
imposed by the 1940 Act, each Fund's investment objective,
defined investment policies, and restrictions, tax
diversification, and distribution and income requirements,
provided such are determinable based upon the Fund's accounting
records. In connection with the foregoing, review quarterly
compliance reports that are prepared by the investment
adviser(s), and notify appropriate Fund officers and advisor of
xxxx-to-market issues pursuant to Board-approved procedures.
VICTORY will also provide the Board with quarterly results of
compliance reviews;
22
8. Coordinate the implementation of service arrangements covered by
Shareholder Service Plans adopted by the Board with the financial
institutions that serve, or propose to serve, as shareholder
services agents thereunder ("Shareholder Service Agents"); review
the qualifications of Shareholder Service Agents to serve as such
under the relevant Shareholder Service Plan; and coordinate and
assist in the Trust's execution and delivery of Shareholder
Service Agreements;
9. Assist the Trust and provide on-site personnel in preparing
responses to and providing documents for routine regulatory
examinations or investigations; and coordinating with and taking
instructions from counsel to the Trust in response to such
routine or non-routine regulatory matters. The assistance to be
provided with respect to SEC inspections includes (i) rendering
advice regarding proposed responses (ii) compiling data and other
information in response to SEC requests for information and (iii)
communicating with Fund management and portfolio managers to
provide status updates.
10. Furnish advice and recommendations with respect to other aspects
of the business and affairs of the Funds as the Trust shall
request and the parties shall agree in writing;
11. Make available appropriate individuals to serve as officers of
the Trust (to serve only in ministerial or administrative
capacities relevant to Victory's services hereunder, except as
otherwise provided in this Agreement, upon designation as such by
the Board);
12. Obtain, maintain and file fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust at
the expense of the Trust and Funds in accordance with the
requirements of Rules 17g-1 and 17d-1(7) under the 1940 Act, to
the extent such bonds and policies are approved by the Board;
13. Prepare for Board meetings by (i) preparing and coordinating
collection of the relevant sections of the Board materials
pertaining to the responsibilities of VICTORY and the various
service providers, (ii) assisting and coordinating special
materials related to annual contract approvals and approval of
rule 12b-1 plans and related matters, (iii) attending Board
meetings, and (iv) performing such other Board meeting functions
as agreed by the parties;
14. Not less frequently than annually, review the business of the
Trust and the services provided by the Co-Administrators and
determine: (a) that said services are adequate and complete so as
to provide the Funds with all administrative services required by
applicable laws and rules and the business needs of the Trust and
(b) whether additional or supplemental services are necessary for
the operation of
23
the Funds and inform the Board of Trustees of the Trust how these
additional or supplemental services, if any, shall be provided
and what additional costs and fees would be associated with same.
15. Notify BISYS and Fund counsel of all documents filed by VICTORY
with the SEC.
24
SCHEDULE B
TO THE CO - ADMINISTRATION AGREEMENT
BETWEEN THE VICTORY VARIABLE INSURANCE FUNDS AND
VICTORY CAPITAL MANAGEMENT INC.
The Trust shall pay VICTORY on the first business day of each month, or at such
time(s) as VICTORY shall request and the parties shall agree the following fees
for the services provided under this Agreement at the annual rates set forth
below. For these purposes, the rate at which the asset-based fees are applied is
determined by aggregating the assets of all Funds together. The fees are accrued
daily and paid monthly:
AVERAGE DAILY NET ASSETS ANNUAL FEE
------------------------ ----------
First $10 Billion 0.058%
Over $10 Billion 0.055%
25
SCHEDULE C
TO THE CO - ADMINISTRATION AGREEMENT
BETWEEN THE
VICTORY VARIABLE INSURANCE FUNDS AND
VICTORY CAPITAL MANAGEMENT INC.
FUNDS
Diversified Stock Fund
26
