FORM OF
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 3rd day of January 2005, between REGIONS XXXXXX XXXXXX
SELECT FUNDS (the "Trust"), a Massachusetts business trust having its principal
place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 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, the Trust desires that BISYS perform fund accounting services for
certain investment portfolios of the Trust, listed on Schedule A, (the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and the Trust wish to enter into an Agreement in order to
set forth the terms under which BISYS will perform the fund accounting services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
the Trust and BISYS hereby agree as follows:
1. Services as Fund Accountant
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(a) MAINTENANCE OF BOOKS AND RECORDS. BISYS will keep and maintain the
following books and records of each Fund pursuant to Rule 31a-1 (the "Rule")
under the Investment Company Act of 1940, as amended (the 1940 Act"):
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of
cash and all other debits and credits, as required by subsection
(b)(1) of the Rule;
(ii) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including interest
accrued and interest received, as required by subsection (b)(2)(i)
of the Rule;
(iii) Separate ledger accounts required by subsection (b)(2)(ii) and (iii)
of the Rule; and
(iv) A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by subsection (b)(8) of the Rule.
(b) PERFORMANCE OF DAILY ACCOUNTING SERVICES. In addition to the
maintenance of the books and records specified above, BISYS shall perform the
following accounting services daily for each Fund:
(i) Calculate the net asset value per share utilizing prices obtained
from the sources described in subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing services, or if such
quotes are unavailable, then obtain such prices from each Fund's
investment adviser or its designee, as approved by the Trust's Board
of Trustees (hereafter referred to as the "Board");
(iii) Verify and reconcile with the Funds' custodian all daily trade
activity;
(iv) Compute, as appropriate, each Fund's net income and capital gains,
dividend payables, dividend factors, 7-day yields, 7-day effective
yields, 30-day yields, and weighted average portfolio maturity;
(v) Review daily the net asset value calculation and dividend factor (if
any) for each Fund prior to release to shareholders, check and
confirm the net asset values and dividend factors for reasonableness
and deviations, and distribute net asset values and yields to
NASDAQ;
(vi) Report to the Trust the daily market pricing of securities in any
money market Funds, with the comparison to the amortized cost basis;
(vii) Determine unrealized appreciation and depreciation on securities
held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on securities purchased at a
price other than face value, if requested by the Trust;
(ix) Update fund accounting system to reflect rate changes, as received
from a Fund's investment adviser, on variable interest rate
instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Fund according to instructions received from
the Trust's Administrator;
(xii) Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income and
expense accounts;
(xiii) Provide accounting reports in connection with the Trust's regular
annual audit and other audits and examinations by regulatory
agencies; and
(xiv) Provide such periodic reports as the parties shall agree upon, as
set forth in a separate schedule.
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(c) SPECIAL REPORTS AND SERVICES.
(i) BISYS may provide additional special reports upon the request of the
Trust or a Fund's investment adviser, which may result in an
additional charge, the amount of which shall be agreed upon between
the parties.
(ii) BISYS may provide such other similar services with respect to a Fund
as may be reasonably requested by the Trust, which may result in an
additional charge, the amount of which shall be agreed upon between
the parties.
(d) ADDITIONAL ACCOUNTING SERVICES. BISYS shall also perform the following
additional accounting services for each Fund, without additional compensation:
(i) Provide monthly a download or hard copy of the unaudited financial
statements described below, upon request of the Trust. The unaudited
financial statements will include the following items:
(A) Unaudited Statement of Assets and Liabilities,
(B) Unaudited Statement of Operations,
(C) Unaudited Statement of Changes in Net Assets, and
(D) Unaudited Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise tax
returns;
(B) the Trust's semi-annual reports with the Securities and
Exchange Commission ("SEC") on Form N-SAR;
(C) the Trust's annual, semi-annual and quarterly (if any)
shareholder reports;
(D) registration statements on Form N-1A and other filings relating
to the registration of shares;
(E) the Administrator's monitoring of the Trust's status as a
regulated investment Company under Subchapter M of the Internal
Revenue Code, as amended;
(F) annual audit by the Trust's auditors; and
(G) examinations performed by the SEC.
2. Subcontracting
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BISYS may, at its expense and with prior notice to the Trust, subcontract
with any entity or person concerning the provision of fund accounting services
contemplated hereunder (a "Sub-Fund Accountant"); provided, however, that BISYS
shall not be relieved of any of its duties and obligations under this Agreement
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by the appointment of any such Sub-Fund Accountant and, provided further, that
BISYS shall be responsible, to the extent provided in Section 5 hereof, for all
acts of such subcontractor as if such acts were its own.
3. Compensation
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The Trust shall pay BISYS compensation for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth in
Schedule B attached hereto.
4. Reimbursement of Expenses and Miscellaneous Service Fees
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(a) In addition to paying BISYS the fees provided in Section 3 and
Schedule B, the Trust agrees to reimburse BISYS for its reasonable out-of-pocket
expenses in providing services hereunder, including without limitation the
following:
(i) All freight and other delivery and bonding charges incurred by BISYS
in delivering materials to and from the Trust;
(ii) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by BISYS in communication
with the Trust, the Trust's investment adviser or custodian, dealers
or others as required for BISYS to perform the services to be
provided hereunder;
(iii) The cost of microfilm or microfiche of records or other materials;
(iv) All systems-related expenses associated with the provision of
special reports and services pursuant to Section 1(c) herein;
(v) Any expenses BISYS shall incur at the written direction of an
officer of the Trust (other than an employee of BISYS) thereunto
duly authorized; and
(vi) Any additional expenses reasonably incurred by BISYS in the
performance of its duties and obligations under this Agreement (but
not including any amounts related to pricing information, other than
as provided in paragraph 4(b)(iii), below).
(b) In addition, BISYS shall be entitled to receive the following amounts:
(i) Systems development fees billed at an hourly rate of $150 per hour,
as approved by the Trust;
(ii) Ad hoc reporting fees billed at an agreed upon rate; and
(iii) Charges for the pricing information obtained from third party
vendors for use in pricing the securities of each Fund's portfolio
pursuant to Section 1(b)(ii) of this Agreement, which shall not
exceed the amounts that would be incurred if the Fund were to obtain
the information directly from the relevant vendor or vendors.
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5. Standard of Care; Uncontrollable Events; Limitation of Liability
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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 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 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's 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.
BISYS shall provide the Trust, at such times as the Trust may reasonably
require, copies of reports rendered by independent public accountants on the
internal controls and procedures of BISYS relating to the services provided by
BISYS under this Agreement.
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. Term
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(a) This Agreement shall become effective as of the date first set forth
above and shall continue in effect until November 30, 2007 (the "Initial Term").
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
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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 (a) 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; (b) 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 (c) 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 (a) above based solely upon the Trust's
failure to pay an amount to BISYS which is the subject of a good faith dispute,
if (i) the Trust is attempting in good faith to resolve such dispute with as
much expediency as may be possible under the circumstances, and (ii) 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).
(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 (or any Schedule or exhibit hereto) with the
consent of the Trust, 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 upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust, in addition to the fees and disbursements provided by Sections 3 and 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 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 fund accountant, 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-Fund Accountant appointed as provided in
Section 1 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 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 assets of the Funds and fees payable to BISYS monthly
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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.
7. Indemnification
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The Trust 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 of
every nature and character 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, the
investment adviser, transfer agent, administrator 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 harmless from and against
any and all claims, actions and suits and all losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) 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. 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 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 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,
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 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
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.
8. Record Retention and Confidentiality
------------------------------------
BISYS shall keep and maintain on behalf of the Trust all books and records
which the Trust and BISYS is, or may be, required to keep and maintain pursuant
to any applicable statutes, rules and regulations, including without limitation
Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance of books
and records in connection with the services to be provided hereunder. BISYS
further agrees that all such books and records shall be the property of the
Trust and to make such books and records available for inspection by the Trust
on request, and made available for inspection by the Trust or by the SEC at
reasonable times.
BISYS shall otherwise keep confidential all books and records relating to
the Trust and its shareholders, except when (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. BISYS shall provide the Trust with reasonable
advance notice of disclosure pursuant to items (i) - (iii) of the previous
sentence, to the extent reasonably practicable.
9. Activities of BISYS
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The services of BISYS rendered to the Trust hereunder 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 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, and that BISYS may be or become interested in the Trust as a
shareholder or otherwise.
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10. Reports
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BISYS shall furnish to the Trust and to its properly authorized auditors,
investment advisers, examiners, distributors, dealers, underwriters, salesmen,
insurance companies and others designated by the Trust in writing, such reports
and at such times as are prescribed pursuant to the terms and the conditions of
this Agreement to be provided or completed by BISYS, or as subsequently agreed
upon by the parties pursuant to an amendment hereto. The Trust agrees to examine
each such report or copy promptly and will report or cause to be reported any
errors or discrepancies therein. In the event that errors or discrepancies,
except such errors and discrepancies as may not reasonably be expected to be
discovered by the recipient after conducting a diligent examination, are not so
reported promptly, a report will for all purposes be accepted by and binding
upon the Trust and any other recipient, and BISYS shall have no liability for
errors or discrepancies therein and shall have no further responsibility with
respect to such report except to perform reasonable corrections of such errors
and discrepancies within a reasonable time after requested to do so by the
Trust.
11. Rights of Ownership
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All computer programs and procedures employed or developed by or on behalf
of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
12. Return of Records
-----------------
BISYS may at its option at any time, and shall promptly upon the Trust's
demand, turn over to the Trust and cease to retain BISYS'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, such documents and records will
be retained by BISYS for six years from the year of creation. At the end of such
six-year period, such records and documents will be turned over to the Trust
unless the Trust authorizes in writing the destruction of such records and
documents.
13. Representations and Warranties
------------------------------
(a) The Trust represents and warrants that: (1) as of the close of
business on the effective date of this Agreement, each Fund has authorized
unlimited shares, and (2) this Agreement has been duly authorized by the Trust
and, when executed and delivered by the Trust, will constitute a legal, valid
and binding obligation of the Trust, enforceable against the Trust in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties.
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(b) BISYS represents and warrants that: (1) the various procedures and
systems which BISYS has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust 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 (2) this
Agreement has been duly authorized by BISYS and, when executed and delivered by
BISYS, will constitute a legal, valid and binding obligation of BISYS,
enforceable against BISYS in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
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.
14. Insurance
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BISYS 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, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust 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 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 should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
15. Information Furnished by the Trust
----------------------------------
The Trust has furnished, or will promptly furnish, to BISYS the following,
as amended and current as of the effective date of this Agreement:
(a) A copy of the Declaration of Trust of the Trust and of any amendments
thereto, certified by the proper official of the state in which such Declaration
has been filed.
(b) Certified copies of the following documents:
(i) The Trust's Bylaws and any amendments thereto; and
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(ii) Resolutions of the Trustees covering (A) approval of this Agreement
and authorization of a specified officer of the Trust to execute and
deliver this Agreement and authorization for specified officers of
the Trust to instruct BISYS hereunder, and (B) authorization of
BISYS to act as fund accountant for the Trust.
(c) A list of all officers of the Trust and any other persons (who may be
associated with the Trust or its investment advisor), together with specimen
signatures of those officers and other persons, who (except as otherwise
provided herein to the contrary) are authorized to instruct BISYS in all
matters.
(d) Two copies of the Prospectuses and Statement of Additional Information
of each Fund.
16. Information Furnished by BISYS
------------------------------
BISYS will furnish to the Trust evidence of the following upon request:
(a) Approval of this Agreement by BISYS, and authorization of a specified
officer of BISYS to execute and deliver this Agreement; and
(b) Authorization of BISYS to act as fund accountant for the Trust.
17. Amendments to Documents
-----------------------
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 15 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statements of Additional
Information of the Trust which might have the effect of changing the procedures
employed by BISYS in providing the services agreed to hereunder or which
amendment might affect the duties of BISYS hereunder unless the Trust first
obtains BISYS's approval of such amendments or changes, which approval shall not
be withheld unreasonably.
18. Legal Advice; Reliance on Prospectus and Instructions
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BISYS may apply to the Company at any time for instructions and may consult
with counsel for the Company 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 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, 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 unless relating to a matter involving BISYS's willful misfeasance, bad
faith, negligence or reckless disregard of BISYS's responsibilities and duties
hereunder, and BISYS shall in no event be liable to the Trust or any Fund or any
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shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
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 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 unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
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. The Administrator will not be held to have notice of
any change of authority of any officers, employees or agents of the Trust until
receipt of written notice thereof from the Trust.
19. Compliance with Law
-------------------
Except for the obligations of BISYS set forth in Section 8 hereof, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
authorities having jurisdiction. BISYS shall have no obligation to take
cognizance of any laws relating to the sale of the Trust's shares.
20. Notices
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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 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx, 00000, Attn: Xxxxxxx X. Xxxxxxx; and if to BISYS, to it 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.
21. Assignment
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This Agreement and the rights and duties hereunder shall not be assignable
with respect to a Fund by either of the parties hereto except by the specific
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
22. Governing Law and Matters Relating to the Trust as a Massachusetts
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Business Trust
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This Agreement shall be governed by and provisions shall be construed in
accordance with the laws of the State of Ohio. 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 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
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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 Trust's
Declaration of Trust.
23 Privacy
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Nonpublic personal financial information relating to consumers or customers
of the Trust provided by, or at the direction of the Trust to BISYS, or
collected or retained by BISYS to perform 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 or as required or permitted by law. BISYS
shall have in place and 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. The Trust represents to BISYS that it
has adopted a Statement of its privacy policies and practices as required by the
SEC's Regulation S-P and agrees to provide BISYS with a copy of that statement
annually.
24. 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 supersedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein. This Agreement shall not supersede or otherwise affect
any provisions of that certain letter agreement between Xxxxxx Asset Management,
Inc., BISYS, and BISYS Fund Services Limited Partnership, dated October 18,
2004.
(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
(other than an officer or employee of BISYS) does not conflict with or violate
any requirements of the Trust's Declaration of Trust, Bylaws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
* * * * *
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
REGIONS XXXXXX XXXXXX SELECT FUNDS
By:
----------------------------------------------
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
----------------------------------------------
Name:
Title:
14
SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUNDS
AND BISYS FUND SERVICES OHIO, INC.
DATE: JANUARY 3, 2005
FUNDS
-----
Regions Xxxxxx Xxxxxx Select Treasury Money Market Fund
Regions Xxxxxx Xxxxxx Select Government Money Market Fund
15
SCHEDULE B
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUNDS
AND BISYS FUND SERVICES OHIO, INC.
DATE: JANUARY 3, 2005
FEES
----
The Annual Fee for the Funds is 0.030% of net assets.
For purposes of determining the fees, the value of each Fund's net assets shall
be computed in the manner described in the Declaration of Trust or in such
Fund's Prospectus as from time to time in effect for the computation of the
value of such net assets in connection with the purchase and redemption of
shares.
In addition to the fees set forth above, BISYS shall be entitled to an
additional annual charge of $10,000 per class per Fund for each class of shares
in excess of one.
CPI ESCALATION
--------------
The fixed fees and other fees expressed as stated dollar amounts in this
schedule and in the Agreement shall be increased annually commencing on the
one-year anniversary date of the effective date hereof by the percentage
increase since the effective date in consumer prices for services as measured by
the United States Consumer Price Index entitled "All Services Less Rent of
Shelter" or a similar index should such index no longer be published.
16
FORM OF
AMENDMENT TO FUND ACCOUNTING AGREEMENT
AMENDMENT effective as of the 18th day of February, 2005 between REGIONS
XXXXXX XXXXXX SELECT FUNDS (the "Trust"), a Massachusetts business trust having
its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 and BISYS FUND SERVICES OHIO, INC. ("BISYS"), a Delaware
corporation having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, to the Fund Accounting Agreement, dated January 3, 2005,
(the "Agreement"), under which BISYS performs fund accounting services for
certain investment portfolios of the Trust (the "MK Funds"). All capitalized
terms used but not defined herein shall have the meaning given to them in the
Agreements.
WHEREAS, BISYS and LEADER Mutual Funds ("LEADER") entered into a Fund
Accounting Agreement dated April 1, 2004 (the "LEADER Agreement"), whereby BISYS
agreed to perform fund accounting 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 being transferred to the Trust as of the date hereof
(the "Consolidation");
WHEREAS, the Trust desires that BISYS continue to perform fund accounting
services for the MK Funds and the LEADER Funds;
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the
Company and BISYS hereby agree as follows:
1. ADDITION OF FUNDS. The term "Funds" as used in the Agreement shall
mean the LEADER Funds and the MK Funds, collectively. Schedules A and B to the
Agreement are hereby deleted and replaced with the Schedules A and B attached
hereto.
2. TERM. The following paragraph is added as new Section 6(d) of the
Agreement:
"(d) The parties acknowledge that the Trust intends to reorganize its
investment portfolios, which may include merging certain Funds with one or more
other investment portfolios, effective on or about June 1, 2005 (the "Merger"),
subject to shareholder approval. The parties agree that this Agreement may be
amended or terminated upon the effective date of the Merger without application
of the liquidated damages provision contained in Section 6(c) above provided the
terms of that certain letter agreement between Xxxxxx Asset Management, Inc.,
BISYS, 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."
3. MISCELLANEOUS
(a) This Amendment supplements and amends the Agreement. The provisions
set forth in this Amendment supersede all prior negotiations, understandings and
agreements bearing upon the subject matter covered herein, including any
conflicting provisions of the Agreements or any provisions of the Agreements
that directly cover or indirectly bear upon matters covered under this
Amendment. This Agreement shall not supersede or otherwise affect any provisions
of the Xxxxxx Letter Agreement.
(b) Each reference to the Agreement in such Agreement and in every other
agreement, contract or instrument to which the parties are bound, shall
hereafter be construed as a reference to the Agreement as amended by this
Amendment. Except as provided in this Amendment, the provisions of each
Agreement remain in full force and effect (including, without limitation, the
term of the Agreement). No amendment or modification to this Amendment shall be
valid unless made in writing and executed by each party hereto.
(c) Paragraph headings in this Amendment are included for convenience only
and are not to be used to construe or interpret this Amendment.
(d) This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
REGIONS XXXXXX XXXXXX SELECT FUNDS
By:
-------------------------------------
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
-------------------------------------
Name:
Title:
2
AMENDED SCHEDULE A
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUNDS
AND BISYS FUND SERVICES OHIO, INC.
DATE: FEBRUARY 18, 2005
LEADER FUNDS
------------
FUND NAME BEFORE CONSOLIDATION FUND NAME AFTER CONSOLIDATION
------------------------------ -----------------------------
GROUP I
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
GROUP II
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
MK FUNDS
--------
Regions Xxxxxx Xxxxxx Select Treasury Money Market Fund
Regions Xxxxxx Xxxxxx Select Government Money Market Fund
3
AMENDED SCHEDULE B
TO THE FUND ACCOUNTING AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUNDS
AND BISYS FUND SERVICES OHIO, INC.
DATE: FEBRUARY 18, 2005
FEES
----
Annual Fee
Incremental Net Assets Fee for Group I Leader Funds
---------------------- ----------------------------
Up to $500 million 0.030%
>$500 million - $1 billion 0.015%
>$1 billion 0.010%
The Annual Fee for Group II LEADER Funds and MK Funds is 0.030% of net assets.
For purposes of determining the fees, the value of each Fund's net assets shall
be computed in the manner described in the Declaration of Trust or in such
Fund's Prospectus as from time to time in effect for the computation of the
value of such net assets in connection with the purchase and redemption of
shares.
In addition to the fees set forth above, BISYS shall be entitled to an
additional annual charge of $10,000 per class per Fund for each class of shares
in excess of one. Additional class fees are currently waived for the Tax-Exempt
Bond Fund; $2,500 of the additional class fees is currently waived for Investor
class B Shares of all variable NAV funds. The foregoing waivers will continue
until March 31, 2006, and will then be decreased by 50% for remainder of Initial
Term and any Rollover Term.
CPI ESCALATION
--------------
The fixed fees and other fees expressed as stated dollar amounts in this
schedule and in the Agreement shall be increased annually commencing on the
one-year anniversary date of the effective date hereof by the percentage
increase since the effective date in consumer prices for services as measured by
the United States Consumer Price Index entitled "All Services Less Rent of
Shelter" or a similar index should such index no longer be published.
4
