SUB-ADMINISTRATION AGREEMENT
AGREEMENT made this __ day of _________, 2005, among REGIONS XXXXXX XXXXXX
SELECT FUNDS (the "Trust"), a Massachusetts business trust, with a principal
place of business in ____________________, XXXXXX XXXXXX SELECT FUND, INC., a
Maryland corporation with a principal place of business at 00 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxx 00000, and BISYS Fund Services Ohio, Inc. ("BISYS"), a
Delaware corporation having its principal place of business at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, BISYS and Leader Mutual Funds ("Leader") entered into an
Administration Agreement dated April 1, 2004 (the "Leader Agreement"), whereby
BISYS agreed to perform administration services for Leader, which has continued
in effect through the date hereof;
WHEREAS, certain investment portfolios of Leader, listed on Schedule A,
(the "Leader Funds") are expected to be transferred to the Trust and the
Corporation upon approval of such transaction (the "Consolidation") by the
shareholders of Leader, the Trust and the Corporation(the "Shareholders");
WHEREAS, the Trust and the Corporation desires that BISYS continue to
perform administration services for the Leader Funds and to perform
administration services for certain investment portfolios of the Trust and the
Corporation, listed on Schedule A, (together with the Leader Funds, the
"Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS, the Trust and the Corporation wish to enter into an
Agreement in order to set forth the terms under which BISYS will continue to
perform the administration services set forth herein for the Trust and the
Corporation.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
the Trust, the Corporation and BISYS hereby agree as follows:
1. RETENTION OF BISYS
------------------
The Trust and the Corporation hereby retains BISYS to act as the
sub-administrator of the Funds and to furnish the Trust and Funds with the
management and administrative services as set forth in Section 2 below. BISYS
hereby accepts such appointment to perform the duties set forth below.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, unless otherwise expressly provided or authorized, shall have no
authority to act for or represent the Trust or Corporation in any way and shall
not be deemed an agent of the Trust or the Corporation.
1
2. ADMINISTRATIVE SERVICES
-----------------------
BISYS shall perform or supervise the performance by others of
administrative services in connection with the operations of the Funds, and, on
behalf of the Trust and the Corporation, shall investigate, assist in the
selection of and conduct relations with custodians, depositories, accountants,
legal counsel, underwriters, brokers and dealers, corporate fiduciaries,
insurers, banks and persons in any other capacity deemed to be necessary or
desirable for the Funds' operations. BISYS shall provide the Board of Trustees
of the Trust and the Board of Directors of the Corporation (hereafter referred
to as the "Board") with such reports regarding investment performance as it may
reasonably request but shall have no responsibility for supervising the
performance by any investment adviser or sub-adviser of its responsibilities.
BISYS shall provide the Trust and Corporation with all necessary office
space, equipment, personnel, compensation and facilities (including facilities
for shareholders' and Board of Trustees meetings) for handling the affairs of
the Funds and such other services as BISYS shall, from time to time, determine
to be necessary to perform its obligations under this Agreement. In addition, at
the request of the Board, BISYS shall make reports to the Board concerning the
performance of its obligations hereunder.
Without limiting the generality of the foregoing, BISYS shall:
(a) calculate contractual Trust and Corporation expenses and control all
disbursements for the Funds, and as appropriate, compute the Funds' yields,
total return, expense ratios, portfolio turnover rate and, if required,
portfolio average dollar-weighted maturity;
(b) provide information and assistance to counsel to the Trust and
Corporation preparing (i) the annual update to the Trust's and Corporation's
registration statement on Form N-1A, (ii) other amendments to the Trust's and
Corporation'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 Corporation and proxy materials
relating thereto, and file any of the foregoing with the Securities and Exchange
Commission (the "SEC") upon the request of the Trust, the Corporation or counsel
to the Trust or Corporation;
(c) prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares of beneficial interest in the Trust
and common stock in the Corporation ("Shares") as may be required in order to
comply with Federal and state securities laws) as may be necessary or desirable
to register the Shares with state securities authorities, monitor the sale of
Shares for compliance with state securities laws, and file with the appropriate
state securities authorities the registration statements and reports for the
Trust, the Corporation and the Shares and all amendments thereto, as may be
necessary or convenient to register and keep effective the registration of the
Trust, the Corporation and the Shares with state securities authorities to
enable the Trust and the Corporation to make a continuous offering of its
Shares;
(d) coordinate and prepare, with the assistance of the Funds' investment
adviser and officers, drafts of communications to Shareholders, including the
annual report to Shareholders; prepare the drafts of the semi-annual report for
each of the Funds; and file the certified final versions thereof on Form N-CSR,
and file all required notices pursuant to Rule 24f-2;
2
(e) coordinate the solicitation and tabulation of proxies in connection
with the annual meeting of Shareholders each year, if one is held;
(f) administer contracts on behalf of the Trust and Corporation with,
among others, the Funds' investment adviser, distributor, custodian, transfer
agent and fund accountant;
(g) supervise the Funds' transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
(h) calculate performance data of the Funds for dissemination to up to six
(6) information services covering the investment company industry;
(i) coordinate and supervise the preparation and filing of the Funds' tax
returns;
(j) 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, prospectuses, prospectus supplements, and proxy statements;
(k) assist with the design, development, and operation of the Funds,
including new classes, investment objectives, policies and structure;
(l) advise the Trust, the Corporation and the Board on matters concerning
the Trust, the Corporation, the Funds and their affairs;
(m) obtain, maintain and file fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust the Corporation
at the expense of the Funds in accordance with the requirements of Rules 17g-1
and 17d-1(7) under the Investment Company Act of 1940, as amended (the "1940
Act"), to the extent such bonds and policies are approved by the Board;
(n) monitor and advise the Trust, the Corporation and the Funds on their
regulated investment company status under the Internal Revenue Code of 1986, as
amended;
(o) maintain corporate records on behalf of the Funds, including, but not
limited to, minute books, Declaration of Trust, Articles of Incorporation and
By-Laws;
(p) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Funds as the Trust, the Corporation, and BISYS
shall determine desirable.
(q) make available appropriate individuals to serve as officers of the
Trust or the Corporation upon designation as such by the Board, to serve in
ministerial capacities related to services provided by BISYS as determined by
the Board, or to serve in certain executive capacities subject to an Amendment
to this agreement and relevant BISYS policies;
(r) assist in developing portfolio compliance procedures for each Fund,
and provide compliance monitoring services incorporating certain of those
procedures, which will include, among other matters, compliance with each Fund's
investment objective, defined investment policies, restrictions, and tax
3
diversification, distribution and income requirements, all as are determinable
based upon the Fund's accounting records;
(s) monitor services provide under Shareholder Service Plans adopted by
the Board and financial institutions that serve, or propose to serve, as
shareholder services agents thereunder ("Shareholder Service Agents");
coordinate the services to be rendered by Shareholder Service Agents pursuant to
Shareholder Service Agreements under Shareholder Service Plans, and review the
qualifications of Shareholder Service Agents to serve as such under the relevant
Shareholder Service Plan; coordinate and assist in the Trust's and the
Corporation's execution and delivery of Shareholder Service Agreements; report
to the Board regarding amounts paid under Shareholder Service Agreements and the
nature of Services provided by the Shareholder Service Agents thereunder; and
maintain appropriate records in connection with the foregoing;
(t) provide assistance and guidance to the Trust and Corporation with
respect to matters governed by or related to regulatory requirements and
developments including, monitoring regulatory and legislative developments which
may effect the Trust or the Corporation, and assisting in strategic planning in
response thereto; assisting the Trust and the Corporation in responding to and
providing documents for routine regulatory examinations or investigations; and
working closely with counsel to the Trust and the Corporation in response to
such routine or non-routine regulatory matter; and
(u) assist the Trust and the Corporation in preparing for and
administering Board meetings by (i) coordinating Board book production and
distribution, (ii) subject to review and approval by the Trust, the Corporation
and their counsel, preparing Board agendas and minutes, (iii) preparing the
relevant sections of the Board materials pertaining to the responsibilities of
BISYS, (iv) assisting and coordinating special materials related to annual
contract approvals and approval of rule 12b-1 plans and related matters, (v)
provide appropriate personnel to attend Board meetings and record the minutes of
such meetings, and produce and distribute materials for Board meetings,
including relevant sections of the Board materials pertaining to the
responsibilities of BISYS, and (vi) performing such other Board meeting
functions as agreed by the parties.
(v) To assist the Trust and the Corporation in connection with its
obligations under Sections 302 and 906 of the Sarbanes Oxley Act of 2002 and
Rule 30a-2 under the 1940 Act (collectively, with such other related regulatory
provisions applicable to the Trust, "Xxxxxxxx-Xxxxx"), BISYS will internally
establish and maintain controls and procedures ("BISYS internal controls")
designed to ensure that information recorded, processed, summarized, or reported
by BISYS and its affiliates on behalf of the Trust and the Corporation and
included in financial information certified as required by certain Trust and
Corporation officers ("Certifying Officers") on Form N-CSR ("Reports") is (a)
recorded, processed, summarized, and reported by BISYS within the time periods
specified in the Commission's rules and forms and the corresponding disclosure
controls and procedures of the Funds ("Fund DCPs"), and (b) accumulated and
communicated to the relevant Certifying Officers consistent with the Fund DCPs.
If requested by Certifying Officers, BISYS will provide a
sub-certification consistent with the requirements of Xxxxxxxx-Xxxxx pertaining
to BISYS's services with respect to any fiscal period during which BISYS serves
4
or served as financial administrator. In rendering such sub-certifications
concerning Fund Reports, BISYS may (a) limit its representations to information
prepared, processed and reported by BISYS; (b) rely upon and assume the accuracy
of the information provided by officers and other authorized agents of the
Funds, including any other service providers to the Funds (other than BISYS and
its affiliates) and compliance by such officers and agents with the Fund DCPs,
including but not limited to, each Fund's investment adviser(s) and custodian;
and (c) assume that the Trust has selected the appropriate accounting policies
for the Funds.
(w) BISYS shall perform such other services for the Trust and the
Corporation that are mutually agreed upon by the parties from time to time. Such
services may include performing internal audit examinations; mailing the annual
reports of the Funds; preparing an annual list of Shareholders; and mailing
notices of Shareholders' meetings, proxies and proxy statements, for all of
which the Trust and the Corporation will pay such fees as may be mutually agreed
upon, including BISYS's out-of-pocket expenses.
3. ALLOCATION OF CHARGES AND EXPENSES
----------------------------------
(a) BISYS shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
BISYS shall also provide the items which it is obligated to provide under this
Agreement, and shall pay all compensation, if any, of officers of the Trust and
Corporation and Trustees of the Trust and Directors of the Corporation who are
affiliated persons of BISYS or any affiliated corporation of BISYS; provided,
however, that unless otherwise specifically provided, BISYS shall not be
obligated to pay the compensation of any employee of the Trust or Corporation
retained by the Board to perform services on behalf of the Funds.
(b) The Trust and Corporation assume and shall pay or cause to be paid all
other expenses of the Trust or Corporation not otherwise allocated herein,
including, without limitation, organization costs, taxes, expenses for legal and
auditing services, 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, the costs of custodial
services, the cost of initial and ongoing registration of the Shares under
Federal and state securities laws, fees and out-of-pocket expenses of Trustees
or Directors who are not affiliated persons of BISYS or any affiliated
corporation of BISYS (fees for other "interested Trustees" or "interested
Directors" may be paid by parties other than the Trust or Corporation),
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers.
4. COMPENSATION OF BISYS
---------------------
(a) For the services to be rendered, the facilities furnished and the
expenses assumed by BISYS pursuant to this Agreement, the Funds shall pay
monthly to BISYS compensation at an annual rate of 0.105% (10.5 basis points)
with respect to the Leader Funds and 0.06% (6 basis points) with respect to the
Regions Xxxxxx Xxxxxx Select Funds, in each case of the average daily net assets
of the applicable Fund. In addition to the foregoing, the Trust or Corporation
5
shall also reimburse BISYS for all of its reasonable out-of-pocket expenses,
including, but not limited to, travel and lodging expenses incurred by officers
and employees of BISYS in connection with attendance at (i) Board meetings and
(ii) any other meetings for which such attendance is requested or agreed upon by
the parties.
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,
BISYS'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 above. Payment of BISYS's compensation for the preceding month
shall be made promptly.
(b) All rights of compensation under this Agreement for services performed
as of the termination date shall survive the termination of this Agreement.
5. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY
----------------------------------------------------------------
BISYS shall use reasonable professional diligence to ensure the accuracy
of all services performed under this Agreement, but shall not be liable to the
Trust or Corporation for any action taken or omitted by BISYS in the absence of
bad faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties. The duties of BISYS shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's or Corporation's reasonable request, BISYS 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, BISYS
assumes no responsibility hereunder, and shall not be liable for, any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control. Events beyond BISYS' reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, acts of terrorism, 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, BISYS shall follow applicable procedures in its
disaster recovery and business continuity plan and use all commercially
reasonable efforts to minimize any service interruption.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, 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 EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6
6. ACTIVITIES OF BISYS
-------------------
The services of BISYS rendered to the Trust and Corporation are not to be
deemed to be exclusive. BISYS 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 or Corporation are or may be or become
interested in BISYS, as officers, employees or otherwise and that partners,
officers and employees of BISYS and its counsel are or may be or become
similarly interested in the Trust or Corporation, and that BISYS may be or
become interested in the Trust or Corporation as a Shareholder or otherwise.
7. DURATION OF THIS AGREEMENT
--------------------------
(a) This Agreement shall become effective as of the effective date of the
Consolidation, and shall continue in effect until the third anniversary of such
date (the "Initial Term"), provided that if the Consolidation is not approved by
the Shareholders this Agreement shall not become effective and shall be null and
void. After the Initial Term, unless otherwise terminated as provided herein,
this Agreement shall be renewed automatically for successive one year periods
("Rollover Periods"). This Agreement may be terminated only (i) by provision of
a notice of non-renewal in the manner set forth below, (ii) by mutual agreement
of the parties or (iii) for "cause," as defined below, upon the provision of
sixty (60) days advance written notice by the party alleging cause. Written
notice of non-renewal must be provided at least one hundred and eighty (180)
days prior to the end of the Initial Term or any Rollover Period, as the case
may be.
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,
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 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. BISYS shall not terminate this Agreement pursuant to clause (i) of
this paragraph based solely upon the Trust's or Corporation's failure to pay an
amount to BISYS which is the subject of a good faith dispute, if (x) the Trust
and Corporation is attempting in good faith to resolve such dispute with as much
expediency as may be possible under the circumstances, and (y) the Trust and
Corporation continues to perform its obligations hereunder in all other material
respects (including paying all fees and expenses not subject to reasonable
dispute hereunder).
(b) Notwithstanding the foregoing, following any such termination, in the
event that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement with the consent of the Trust or Corporation, the
provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect. Fees and
out-of-pocket expenses incurred by BISYS but unpaid by the Trust or Corporation
upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust or Corporation, in addition to the fees and disbursements provided by
7
Section 4 hereof, the amount of all of BISYS's cash disbursements in connection
with BISYS's activities in effecting such termination, including without
limitation, the delivery to the Trust and/or its distributor or investment
adviser and/or other parties of the Trust's or Corporation's property, records,
instruments and documents.
(c) If, for any reason other than (i) non-renewal, (ii) mutual agreement
of the parties or (iii) "cause" for termination of BISYS hereunder, BISYS's
services are terminated hereunder, BISYS is replaced as sub-administrator, or if
a third party is added to perform all or a part of the services provided by
BISYS under this Agreement (excluding any Sub-Agent appointed as provided in
Section 8 hereof), then the Trust and Corporation 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 BISYS equal to the balance that would
be due BISYS for its services hereunder during (x) the next twelve (12) months
or (y) if less than twelve (12), the number of months remaining in the
then-current term of this Agreement, assuming for purposes of the calculation of
the one-time payment that the fees that would be earned by BISYS for each month
shall be based upon the average net asset values of the Funds and fees payable
to BISYS monthly during the twelve (12) months prior to the date that services
terminate, BISYS is replaced or a third party is added.
The parties further acknowledge and agree that, in the event services are
terminated, BISYS is replaced, or a third party is added, as set forth above,
(i) a determination of actual damages incurred by BISYS would be extremely
difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate BISYS for damages incurred and is not intended
to constitute any form of penalty.
(d) The parties acknowledge that the Trust intends to reorganize its
investment portfolios, including merging certain Funds, in 2005 (the "Merger"),
subject to Shareholder approval. The parties also acknowledge that all
administration services with respect to Regions Xxxxxx Xxxxxx Select Short Term
Bond Fund ("Short Term Bond Fund"), a series of the Corporation will be
performed by Xxxxxx Xxxxxx & Co., Inc. commencing July 1, 2005. The parties
agree that this Agreement may be amended or terminated upon the effective date
of the Merger and on June 30, 2005 with respect to Short Term Bond Fund, without
application of the liquidated damages provision contained in Section 7(c) above
provided the terms of that certain letter agreement between Xxxxxx Asset
Management, Inc., BISYS Fund Services Ohio, Inc., and BISYS Fund Services
Limited Partnership, dated October 18, 2004, (the "Xxxxxx Letter Agreement") are
fulfilled by such amendment or by execution of a replacement agreement in the
event of termination.
8. ASSIGNMENT
----------
This Agreement shall not be assignable by either party without the written
consent of the other party; provided, however, that BISYS may, at its expense
and with the advance approval of the Board, subcontract with any entity or
person concerning the provision of administration services contemplated
hereunder (a "Sub-Agent"). BISYS shall not, however, be relieved of any of its
obligations under this Agreement by the appointment of any Sub-Agent or other
subcontractor and BISYS shall be responsible, to the extent provided in Section
5 hereof, for all acts of any Sub-Agent as if such acts were its own. This
8
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
9. INDEMNIFICATION
---------------
The Trust and the Corporation agrees to indemnify and hold harmless BISYS,
its employees, agents, directors, officers and nominees from and against any and
all claims, demands, actions and suits, and from and against any and all
judgments, liabilities, losses, damages, costs, charges, counsel fees and other
expenses (including reasonable investigation expenses) of every nature and
character (collectively, "Losses") arising out of or in any way relating to
BISYS's actions taken or omissions with respect to the performance of services
under this Agreement or based, if applicable, upon reasonable reliance on
information, records, instructions or requests given or made to BISYS by the
Trust or the Corporation , the investment adviser, fund accountant, transfer
agent or custodian thereof; provided that this indemnification shall not apply
to actions or omissions of BISYS in cases of its own bad faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties.
BISYS shall indemnify, defend, and hold the Trust and the Corporation
harmless from and against any and all Losses resulting directly and proximately
from BISYS's willful misfeasance, bad faith or negligence in the performance of
its duties, or by reason of reckless disregard of its obligations and duties
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 that indemnification is
not merited under the circumstances. If in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to 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, 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 unreasonably withheld or delayed.
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 unreasonably withheld. 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
9
unreasonably by the indemnified party) unless such settlement imposes no
liability, responsibility or other obligation upon the indemnified party and
relieves it of all fault. 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. CERTAIN RECORDS
---------------
BISYS shall maintain customary records in connection with its duties as
specified in this Agreement. Any records required to be maintained and preserved
pursuant to Rules 31a-1 and 31a-2 under the 1940 Act which are prepared or
maintained by BISYS on behalf of the Trust and the Corporation shall be prepared
and maintained at the expense of BISYS, but shall be the property of the Trust
and the Corporation and will be surrendered promptly to the Trust or Corporation
on request, and made available for inspection by the Trust, the Corporation or
by the SEC at reasonable times.
BISYS may at its option at any time, and shall promptly upon the Trust's
or Corporation's demand, turn over to the Trust or the Corporation and cease to
retain BISYS's files, records and documents created and maintained by BISYS
pursuant to this Agreement which are no longer needed by BISYS in the
performance of its services or for its legal protection. If not so turned over
to the Trust or the Corporation, such documents and records shall be retained by
BISYS for six years from the year of creation. At the end of such six-year
period, such records and documents shall be turned over to the Trust or
Corporation unless the Trust or Corporation authorizes in writing the
destruction of such records and documents.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify the Trust and the Corporation and follow the
Trust's and Corporation's instructions as to permitting or refusing such
inspection; provided that BISYS may exhibit such records in any case where (i)
disclosure is required by law, (ii) BISYS is advised by counsel that it may
incur liability for failure to make a disclosure, (iii) BISYS is requested to
divulge such information by duly-constituted authorities or court process, or
(iv) BISYS is requested to make a disclosure by the Trust or Corporation. BISYS
shall provide the Trust and Corporationwith reasonable advance notice of
disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent
reasonably practicable.
11. INSURANCE
---------
BISYS shall maintain a fidelity bond covering larceny and embezzlement and
an insurance policy with respect to errors and omissions coverage in amounts
that are appropriate in light of its duties and responsibilities hereunder. Upon
the request of the Trust or the Corporation , BISYS shall provide evidence that
coverage is in place. BISYS shall notify the Trust and the Corporation should
its insurance coverage with respect to professional liability or errors and
omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS shall notify the Trust and the
Corporation 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 and the Corporation should the total outstanding claims made by
10
BISYS under its insurance coverage materially impair, or threaten to materially
impair, the adequacy of its coverage.
12. LEGAL ADVICE; RELIANCE ON PROSPECTUS AND INSTRUCTIONS
-----------------------------------------------------
BISYS may apply to the Trust or Corporation at any time for instructions
and may consult with counsel for the Trust or Corporation and with accountants
and other experts with respect to any matter arising in connection with BISYS's
duties, and BISYS shall not be liable nor accountable for any action taken or
omitted by it in good faith in accordance with such instruction or with the
opinion of such counsel, accountants or other experts. BISYS shall notify the
Trust and the Corporation at any time BISYS believes that it is in need of the
advice of counsel (other than counsel in the regular employ of BISYS or any
affiliated companies) with regard to BISYS's responsibilities and duties
pursuant to this Agreement. After so notifying the Trust and the Corporation,
BISYS, at its discretion, shall be entitled to seek, receive and act upon advice
of legal counsel of its choosing, such advice to be at the expense of the Trust
and Corporation unless relating to a matter involving BISYS's willful
misfeasance, bad faith, negligence or reckless disregard of BISYS's
responsibilities and duties.
As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the Prospectuses and Statement of Additional Information of
the Trust and Corporation relating to the relevant Funds to the extent that such
services are described therein, as well as the minutes of Board meetings (if
applicable) and other records of the Trust and the Corporation unless BISYS
receives written instructions to the contrary in a timely manner from the Trust
and the Corporation .
Also, BISYS 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. BISYS will not be held to have notice of any change of
authority of any officers, employees or agents of the Trust and the Corporation
until receipt of written notice thereof from the Trust and the Corporation.
13. NOTICE
------
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
____________________________________________, Attn: ______________________; with
a copy to the Trust at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn:
_____________; if to the Corporation to at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxx; if to BISYS, at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000; 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.
14. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A MASSACHUSETTS
---------------------------------------------------------------------
BUSINESS TRUST AND THE CORPORATION AS A MARYLAND CORPORATION.
------------------------------------------------------------
This Agreement 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. It is
11
expressly agreed that the obligations of the Trust or Corporation hereunder
shall not be binding upon any of the Trustees, Directors, shareholders,
nominees, officers, agents or employees of the Trust or Corporation personally,
but shall bind only the trust property of the Trust or Corporation. The
execution and delivery of this Agreement have been authorized by the Trustees
and the Directors and this Agreement has been signed and delivered by an
authorized officer of the Trust and Corporation, acting as such, and neither
such authorization by the Trustees, the Directors 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 or Corporation as provided in the Trust's
Declaration of Trust and the Corporation's Articles of Incorporation.
15. REPRESENTATIONS AND WARRANTIES
------------------------------
The Trust and the Corporation represents and warrants to BISYS that this
Agreement has been duly authorized by the Trust and the Corporation and, when
executed and delivered by the Trust and the Corporation, will constitute a
legal, valid and binding obligation of the Trust and the Corporation,
enforceable against the Trust and the Corporation in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and secured
parties.
BISYS represents and warrants that: (a) the various procedures and systems
which BISYS 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 of the Trust and the Corporation and BISYS's records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as are reasonably required for the secure performance of its
obligations hereunder; and (b) this Agreement has been duly authorized by BISYS
and, when executed and delivered by BISYS, will constitute a legal, valid and
binding obligation of BISYS, enforceable against BISYS in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the right and remedies of creditors and
secured parties.
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 BISYS ARE COMPLETELY DISCLAIMED.
16. PRIVACY
-------
Nonpublic personal financial information relating to consumers or
customers of the Trust and the Corporation provided by, or at the direction of
the Trust and the Corporation to BISYS, or collected or retained by BISYS in the
course of performing its duties shall be considered confidential information.
BISYS shall not give, sell or in any way transfer such confidential information
to any person or entity, other than affiliates of BISYS except at the direction
of the Trust and the Corporation or as required or permitted by law. BISYS
12
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
Trust and the Corporation. The Trust and the Corporation represent to BISYS
that it has adopted a Statement of its privacy policies and practices as
required by the Commission's Regulation S-P and agrees to provide BISYS with a
copy of that statement annually.
17. MISCELLANEOUS
-------------
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and subject to
approval of the Consolidation by the Shareholders supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the Leader Agreement, provided
that if the Consolidation is not approved by the Shareholders the Leader
Agreement shall remain in full force and shall be unaffected by this Agreement.
This Agreement shall not supersede or otherwise affect any provision of the
Xxxxxx Letter Agreement.
(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 amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive officer of the Trust
and the Corporation (other than an officer or employee of BISYS) does not
conflict with or violate any requirements of the Trust's Declaration of Trust,
the Corporation's Articles of Incorporation, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
(e) The terms "interested person" and "affiliated person," when used in
this Agreement, shall have the respective meanings specified in the 1940 Act and
the rules and regulations thereunder, subject to such exemptions as may be
granted by the Commission.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
REGIONS XXXXXX XXXXXX SELECT FUND
By:________________________________
Name:
Title:
13
XXXXXX XXXXXX SELECT FUND, INC.
By:________________________________
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:________________________________
Name:
Title:
14
SCHEDULE A
ADMINISTRATION AGREEMENT BETWEEN
REGIONS XXXXXX XXXXXX SELECT FUND
AND BISYS FUND SERVICES OHIO, INC.
DATE: _____________, 2005
LEADER FUNDS
--------------------------------------------------------------------------------
FUND NAME BEFORE CONSOLIDATION FUND NAME AFTER CONSOLIDATION
--------------------------------------------------------------------------------
LEADER Growth Equity Fund Regions Xxxxxx Xxxxxx Select LEADER
Growth Equity Fund
--------------------------------------------------------------------------------
LEADER Growth & Income Fund Regions Xxxxxx Xxxxxx Select LEADER
Growth & Income Fund
--------------------------------------------------------------------------------
LEADER Balanced Fund Regions Xxxxxx Xxxxxx Select LEADER
Balanced Fund
--------------------------------------------------------------------------------
LEADER Tax-Exempt Bond Fund Regions Xxxxxx Xxxxxx Select LEADER
Tax-Exempt Bond Fund
--------------------------------------------------------------------------------
LEADER Intermediate Bond Fund Regions Xxxxxx Xxxxxx Select LEADER
Intermediate Bond Fund
--------------------------------------------------------------------------------
LEADER Tax-Exempt Money Market Fund Regions Xxxxxx Xxxxxx Select LEADER
Tax-Exempt Money Market Fund
--------------------------------------------------------------------------------
LEADER Money Market Fund Regions Xxxxxx Xxxxxx Select LEADER
Money Market Fund
--------------------------------------------------------------------------------
LEADER Short Term Bond Fund Regions Xxxxxx Xxxxxx Select LEADER
Short Term Bond Fund
--------------------------------------------------------------------------------
REGIONS XXXXXX XXXXXX SELECT FUNDS
Regions Xxxxxx Xxxxxx Select Treasury Money Market Fund
Regions Xxxxxx Xxxxxx Select Government Money Market Fund
15
