Exhibit (9)(g)
AGENCY AGREEMENT
THIS AGREEMENT made as of the 18th day of March, 1997, by and among
PEGASUS FUNDS (the "Fund"), a Massachusetts business trust registered as an
open-end management investment company under the Investment Company Act of
1940 (the "1940 Act"); BISYS FUND SERVICES, INC. ("BFS"), a Delaware
corporation; and BISYS QUALIFIED PLAN SERVICES, INC., a Delaware corporation
("BQPS").
W I T N E S S E T H:
WHEREAS, the Fund has caused First Data Investor Services Group,
Inc., the transfer agent, dividend disbursement agent and shareholder
servicing agent for the Fund (the "Transfer Agent") to establish a master
account for each investment portfolio of the Fund identified on Schedule A
(individually, a "Portfolio"; collectively, the "Portfolios") on its mutual
fund shareholder accounting system reflecting the aggregate ownership of such
Portfolios by each of the tax-qualified defined contribution plans made
available by First Chicago NBD Bank (individually, a "Plan"; collectively,
the "Plans") for which BQPS has agreed to provide Plan recordkeeping
services;
WHEREAS, it is intended that BQPS will establish individual accounts
on its defined contribution plan record-keeping system reflecting all
transactions by or on behalf of participants and beneficiaries under the
Plans which result in purchases or redemptions by the Plans of shares of the
Portfolios;
WHEREAS, it is intended that BFS will act as a servicing agent for
the Fund to receive orders by the Plans for purchases and redemptions of
shares of the Portfolios resulting from transactions by or on behalf of the
Plan participants and beneficiaries which are recorded on BQPS' defined
contribution plan record-keeping system;
WHEREAS, the parties hereto have agreed to utilize the Fund/SERV
system established by National Securities Clearing Corporation ("NSCC") for
the placement and settlement of Fund trades ("Fund/SERV"); and
WHEREAS, it is intended that the settlement of trades through
Fund/SERV will provide for the settlement of trades within three days of each
trade date.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
Section 1. Appointment as Servicing, Agent. BFS is hereby appointed
as a Servicing Agent for the Fund to receive orders, in
accordance with the procedures outlined in Section 5 hereof, for the
purchases and redemptions by the Plans of shares of the Portfolios. Such
purchases and redemptions shall be based on participant-level transactions
made by or on behalf of participants and beneficiaries under the Plans which
are recorded on BQPS' defined contribution plan record-keeping system. For
purposes of this Agreement, "participant-level transactions" shall include:
(a) any authorized direction to invest contributions by or on
behalf of any Plan participant in any Portfolio in accordance with
the terms and conditions of the applicable Plan and the Fund's
prospectuses;
(b) any authorized direction to transfer or exchange existing
amounts held on behalf of any participant or beneficiary by the
applicable Plan to any Portfolio in accordance with the terms and
conditions of the Plan and the Fund's prospectuses;
(c) any authorized direction to transfer or exchange existing
amounts invested in any Portfolio on behalf of any participant or
beneficiary by the applicable Plan to any other investment option
offered under the Plan in accordance with the terms and conditions of
the Plan and the Fund's prospectuses; and
(d) any authorized direction to pay loan, withdrawal or
distribution proceeds to a participant or beneficiary by the
applicable Plan from the Fund in accordance with the terms and
conditions of the Plan and the Fund's prospectuses.
BQPS will notify the Fund in writing of any changes in a Plan which
would have an effect on the aforementioned procedures. BQPS shall maintain
records for each Plan and for the participants thereof reflecting all shares
of each Portfolio purchased and redeemed by each Plan based on
participant-level transactions (including the date and price for all
transactions and share balances) and all reinvestments by each Plan of
dividends and capital gains distributions paid by the Portfolios. BQPS shall
reconcile on each business day all transactions by each Plan involving shares
of the Portfolios (including purchases, redemptions and reinvestments of
dividends and capital gains distributions) with the corresponding
participant-level transactions on BQPS' defined contribution plan
record-keeping system.
Section 2. Appointment of Subcontractor. BFS may, in its discretion,
appoint in writing other parties that are qualified to perform the services
that BFS is responsible for providing under this Agreement and are reasonably
acceptable to the Fund
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(individually, a "Subcontractor") to carry out some or all of its
responsibilities under this Agreement. It is understood that any such
Subcontractor shall be the agent of BFS and not the agent of the Fund or the
Transfer Agent; it is further understood that BFS shall be fully responsible
for the acts of such Subcontractor and shall not be relieved of any of its
responsibilities hereunder by the appointment of such Subcontractor.
Section 3. Fees. The Fund shall pay BFS for the services to be
provided by BFS under this Agreement in accordance with, and in the manner
set forth in, Schedule B hereto.
Section 4. Reimbursement of Expenses. In addition to paying BFS the
fees described in Section 3 hereof, the Fund agrees to reimburse BFS for its
out-of-pocket expenses in providing services hereunder, including without
limitation, the following:
(a) All freight and other delivery and bonding charges
incurred by BFS in delivering materials to shareholders or any of the
parties to this Agreement;
(b) All direct telephone, telephone transmission and telecopy
or other electronic transmission expenses incurred by BFS as required
to perform the services to be provided by BFS hereunder;
(c) Costs of postage, couriers, stock computer paper,
statements, labels, envelopes, checks, reports, letters, tax forms,
proxies, notices or other form of printed material which shall be
required by BFS for the performance of the services to be provided
hereunder;
(d) The cost of microfilm or microfiche of records or other
materials; and
(e) Any expenses BFS shall incur at the written direction of a
duly authorized officer of the Fund.
Section 5. Accepting Purchase and Redemption Orders. In accordance
with the procedures set forth below, BFS will receive orders by the Plans for
purchases and redemptions of shares of the Portfolios resulting from
participant-level transactions which are recorded on BQPS' defined
contribution plan recordkeeping system. In the case of any such purchase or
redemption order received by BQPS on any business day prior to the time the
net asset value of shares of the Portfolio is determined, the order shall be
accorded a trade date on the accounting system maintained on behalf of the
Fund that is the date of receipt of the order by BQPS. In the case of any
such purchase or redemption order received by BQPS on any business day after
the time the net asset value of shares of the Portfolio is
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determined, the order shall be accorded a trade date on such accounting
system that is the next business day that the Portfolio is open for trading.
(a) Receipt by BQPS of Participant-Level Transactions. It is
understood by the parties that BQPS may receive participant-level
transactions in various formats, including directions in writing, by
computer magnetic tape, diskette or electronic data transmission, or
by any other accepted method for transmitting defined contribution
plan data that is adopted for the Plans. All participant-level
transactions shall be received and processed by BQPS in accordance
with its standard transaction processing procedures that apply to all
investment options offered under the Plans which procedures shall be
in accordance with the procedures outlined in the Fund's current
prospectuses and applicable provisions of law. BQPS shall maintain
records sufficient to identify the date of receipt of all
participant-level transactions involving the Portfolios and shall
make such records available upon request for examination by the Fund
or its designated representative or, at the request of the Fund, by
appropriate governmental authorities. Under no circumstances shall
BQPS change, alter or manipulate any participant-level transactions
received by it in good order.
(b) Transmission by the Transfer Agent of Share Price,
Dividend and Capital Gains Information. The Fund will cause the
Transfer Agent to transmit to BFS, by 6:00 p.m. Eastern time on each
business day that the Fund is open for trading, a telefax identifying
the net asset value per share (or "share price") of each Portfolio as
of the close of trading on that business day. The Fund will also
cause the Transfer Agent to transmit to BFS, by 6:00 p.m. Eastern
time on or before each record date established for the payment of
dividends or capital gains distributions by any Portfolio, a telefax
containing the dividend or capital gains distribution rate for such
payment.
(c) Placement and Settlement of Trades on Behalf of the Plans.
Based on the aggregate participant-level transactions received by BFS
on each business day that the Fund is open for trading, net purchase
and redemption orders shall be transmitted to the Transfer Agent via
Fund/SERV on the same date that such orders are received by BFS;
provided, however, that money market fund purchase and redemption
orders will be placed up to three days following receipt of such
orders. The Fund will cause the Transfer Agent to make available a
trading desk until 7:00 p.m. Eastern time each day for purposes of
processing redemption orders.
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(d) Monthly Statements by the Transfer Agent. The Fund will
cause the Transfer Agent to provide to BFS, by the 15th business day
of each calendar month, a statement for the preceding calendar month
reflecting the shares of each Portfolio held by the Plans as of the
end of such preceding month and all transactions by the Plans in each
Portfolio during such preceding month.
(e) Establishment of Networking Accounts; Transmission of
Files. The Fund will cause the Transfer Agent to establish an
appropriate NSCC Network Level 4 account for Plan-related omnibus
accounts. The Fund will also cause the Transfer Agent to transmit
files to BFS reflecting current Portfolio positions in such
networking accounts. Such files shall be transmitted on a semimonthly
basis at such times that are agreed upon by the parties.
(f) Processing Adjustments. In the event of any error or delay
with respect to the procedures outlined in this Section 5 which is
caused by the Fund or the Transfer Agent, the Fund will cause the
Transfer Agent to make any adjustments on the Transfer Agent's
accounting system necessary to correct such error or delay and the
Fund shall reimburse BFS for any losses or reasonable costs incurred
directly as a result of the error or delay. In the event of any error
or delay with respect to the procedures outlined in this Section 5(f)
which is caused by BFS or BQPS, the Fund will cause the Transfer
Agent to make any adjustments on the Transfer Agent's accounting
system necessary to correct such error or delay provided that the
Fund shall be reimbursed by BFS or BQPS for any losses or reasonable
costs incurred by the Fund or by the Transfer Agent directly as a
result of the error or delay. In the event of any such adjustments on
the Transfer Agent's accounting system, BFS shall make the
corresponding adjustments on its accounting system and BQPS shall
make the corresponding adjustments on its defined contribution plan
record-keeping system. BFS, BQPS and the Fund, respectively, each
agree to provide the others prompt notice of any errors or delays of
the type referred to in this Section 5(f) and to use reasonable
efforts to take such action as may be appropriate to avoid or
mitigate any such costs or losses.
(g) Contingency Procedures. BFS and BQPS shall develop
appropriate, mutually agreeable contingency procedures to protect the
Plan participants and beneficiaries from any significant investment
loss or market exposure attributable to transmission failures.
Section 6. Fund Communications. The following materials and
information with respect to the Fund shall be furnished where
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appropriate or required by applicable law to fiduciaries, participants and
beneficiaries under the Plans:
(a) Fund's Prospectuses, Annual Reports and Proxy Materials.
The Fund or its designee shall make available to Plan sponsors
current prospectuses, shareholder reports, and proxy statements and
related materials for the Fund. The Fund or its designee shall also
furnish additional supplies of such materials for individual
participants.
(b) Review by the Fund of Participant Communications
Materials. It is understood by the parties that, based on the current
prospectuses for the Fund and the information supplied under Section
6(a) above, BQPS may prepare communications or disclosure materials
for participants and beneficiaries under the Plans which describe the
Fund in the same format as that used for the other investment options
offered under the Plans. BQPS shall supply the Fund or the designated
representative of the Fund with copies of such materials on the Fund
within a reasonable period of time in advance of their intended
distribution to the Plan participants and beneficiaries. BQPS and the
Fund shall establish a mutually agreeable time frame in which such
materials shall be reviewed by the Fund or the designated
representative of the Fund for any errors, omissions or objections.
BQPS agrees not to use any such materials without the approval of the
Fund or the designated representative of the Fund.
Section 7. Standard of Care; Reliance on Records and Instructions;
Indemnification.
(a) BFS and BQPS shall use their best efforts to ensure the
accuracy of all services performed under this Agreement, but shall
not be liable to the Fund for any action taken or omitted by them in
the absence of bad faith, willful misfeasance, negligence or reckless
disregard by them of their obligations and duties. BFS and BQPS each
agrees to indemnify and hold harmless the Fund and its employees,
agents, trustees, officers and nominees from and against any and all
claims, demands, actions and suits, whether groundless or otherwise,
and from and against any and all judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses
of every nature and character (i) arising out of the indemnifying
party's bad faith, willful misfeasance, negligence or reckless
disregard of its obligations and duties hereunder; (ii) arising out
of any breach by the indemnifying party of a material provision of
this Agreement; (iii) arising out of any breach by the indemnifying
party of any representation, warranty or covenant made in this
Agreement; or (iv) based, if applicable, upon reasonable reliance on
information,
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records, instructions or requests given or made to the Fund by the
indemnifying party; provided that this indemnification shall not
apply to actions or omissions of the Fund and its employees, agents,
trustees, officers and nominees in cases of their own bad faith,
willful misfeasance, negligence or reckless disregard by them of
their obligations and duties; and further provided that, prior to
confessing any claim against it which may be the subject of this
indemnification, the Fund shall give each of BFS and BQPS written
notice of and reasonable opportunity to defend against said claim in
its own name or in the name of the Fund.
(b) The Fund agrees to indemnify and hold harmless BFS, BQPS
and their employees, agents, directors, officers and nominees from
and against any and all claims, demands, actions and suits, whether
groundless or otherwise, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character (i) arising out of
the Fund's bad faith, willful misfeasance, negligence or reckless
disregard of its obligations and duties hereunder; (ii) arising out
of any breach by the Fund of a material provision of this Agreement;
(iii) arising out of any breach by the Fund of any representation,
warranty or covenant made in this Agreement; or (iv) based, if
applicable, upon reasonable reliance on information, records,
instructions or requests given or made to BFS and/or BQPS by or on
behalf of the Fund; provided that this indemnification shall not
apply to actions or omissions of BFS or BQPS and their employees,
agents, directors, officers and nominees in cases of their own bad
faith, willful misfeasance, negligence or reckless disregard by them
of their obligations and duties; and further provided that prior to
confessing any claim against them which may be the subject of this
indemnification, BFS and/or BQPS shall give the Fund written notice
of and reasonable opportunity to defend against said claim in its own
name or in the name of BFS and/or BQPS.
Section 8. Maintenance of Computer Systems and Other Equipment;
Uncontrollable Events. BFS and BQPS shall maintain adequate and reliable
computer and other equipment necessary or appropriate to carry out their
obligations under this Agreement. In the event of computer or other equipment
failures at their own facilities beyond their reasonable control, BFS and
BQPS shall use their best efforts to minimize service interruptions. BFS and
BQPS represent and warrant that the various procedures and systems which they
have implemented with regard to safekeeping from loss or damage attributable
to fire, theft or any other cause of the records, data, equipment, facilities
and other property used in the performance of their obligations hereunder are
adequate and that they will make such changes therein from
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time to time as are required for the secure performance of their obligations
hereunder. Notwithstanding the foregoing, BFS and BQPS assume no
responsibility hereunder, and shall not be liable for any damage, loss of
data, delay or any other loss whatsoever caused by events beyond their
reasonable control.
Section 9. Confidentiality. All information, books, records, and data
supplied by one party to any other party or parties in connection with the
negotiation or carrying out of this Agreement are and shall remain the
property of the party supplying such information, books, records, or data and
shall be kept confidential by the other parties except as may be required by
law.
Section 10. Effective Date; Duration and Termination of Agreement.
This Agreement shall be effective as of the date first written above. Any
party to this Agreement may terminate such Agreement upon ninety (90) days'
written notice to the other parties (which notice may be waived by any of the
parties). This Agreement shall automatically terminate upon the
discontinuance of the Fund as an investment option offered under the Plans or
if, at any time, the authorizations, licenses, qualifications or
registrations required to be maintained by BFS or BQPS in connection with the
performance of their duties hereunder shall lapse or cease to remain in full
force and effect.
Section 11. Representations and Warranties. BFS and BQPS each
represent that it has obtained, and shall maintain, all authorizations,
licenses, qualifications or registrations of any governmental body required
of it in connection with this Agreement and the registrations are and will
remain in full force and effect during the term of this Agreement. BFS, BQPS
and the Fund each represents and warrants that at all times it has sufficient
financial resources, whether through a fidelity bond or otherwise, to meet
all of its indemnification obligations arising under this Agreement. In
addition, each of the parties hereto represents that it has been duly
authorized to enter into this Agreement.
Section 12. Amendments. The parties hereto may agree in writing to
amend this Agreement at any time in whole or in part.
Section 13. Assignment. This Agreement and the rights and duties
hereunder shall not be assignable by any of the parties hereto except by the
specific written consent of the other parties; provided, however, that this
Section 13 shall not limit or in any way affect BFS' right to appoint a
Subcontractor pursuant to Section 2 hereof. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
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Section 14. Notices. Any notice provided hereunder shall be
sufficiently given when sent by registered or certified mail, postage
prepaid, to the party required to be served with such notice at the following
addresses: for BFS, 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, facsimile number
(000) 000-0000, Attn: Xxxxxx X. Xxxxxxxx; for BQPS, 000 Xxxxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxxx, 00000, facsimile number (000) 000-0000, Attn: Xxxx
Xxxx; for the Fund, 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, facsimile number
(000) 000-0000, Attn: D'Xxx Xxxxx. Any notice, except a notice of termination
pursuant to Section 10, may also be sent by confirmed facsimile transmission,
which shall be deemed to have been given when sent. Any of the parties hereto
may, from time to time, specify in writing to the other parties a different
address or facsimile number for purposes of receiving notice pursuant to this
Section 14.
Section 15. Headings. Paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
Section 16. Governing Law. This Agreement shall be governed by, and
its provisions shall be construed in accordance with, the laws of the State
of Ohio.
Section 17. Matters Relating to the Fund as a Massachusetts Business
Trust. The names "Pegasus Funds" and "Trustees of Pegasus Funds" refer,
respectively, to the business trust created and the trustees, as trustees but
not individually or personally, acting from time to time under an Amended and
Restated Declaration of Trust dated as of May 1, 1992, to which reference is
hereby made and a copy of which is on file at the office of the Secretary of
the Commonwealth of Massachusetts and elsewhere as required by law, and to
any and all amendments thereto so filed or hereafter filed. The obligations
of the Fund entered into in the name or on behalf thereof by any of the
trustees, shareholders or representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
trustees, shareholders or representatives of the Fund personally, but bind
only the assets of the Fund, and all persons dealing with any portfolio of
the Fund must look solely to the assets of the Fund belonging to such
portfolio for the enforcement of any claims against the Fund.
Section 18. Sole Agreement. This Agreement is the sole agreement
whereby BFS acts as servicing agent for the Fund, and it supersedes any and
all preexisting agreements whereby BFS or
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its affiliates acted as servicing agents for the Fund's predecessor
investment companies.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their duly authorized officers as
of the day and year first above written.
BISYS FUND SERVICES, INC.
By:______________________________
Title:___________________________
Date:____________________________
BISYS QUALIFIED PLAN SERVICES, INC.
By:______________________________
Title:___________________________
Date:____________________________
PEGASUS FUNDS
By:_______________________________
Title:____________________________
Date:_____________________________
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SCHEDULE A
FUND PORTFOLIOS:
Money Market Fund
Treasury Money Market Fund
Municipal Money Market Fund
Michigan Municipal Money Market Fund
Cash Management Fund
U.S. Government Securities Cash Management Fund
Treasury Prime Cash Management Fund
Growth Fund
International Equity Fund
Equity Index Fund
Growth and Value Fund
Intrinsic Value Fund
Mid-Cap Opportunity Fund
Small-Cap Opportunity Fund
Equity Income Fund
Bond Fund
Intermediate Bond Fund
Municipal Bond Fund
Short Bond Fund
Michigan Municipal Bond Fund
Intermediate Municipal Bond Fund
Income Fund
International Bond Fund
Managed Assets Balanced Fund
Managed Assets Conservative Fund
Managed Assets Growth Fund
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SCHEDULE B
FEES:
As compensation for its services hereunder, the Fund shall pay
BFS a fee, computed daily and payable monthly, at the annual
rate of .25% of the average net assets attributable to shares
owned by the Plans of each Fund portfolio listed on Schedule A
hereto.
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