FORM OF
SUB-ADMINISTRATION AGREEMENT
AGREEMENT made this 3rd day of January, 2005, between XXXXXX XXXXXX &
COMPANY, INC. (the "Company"), a Tennessee corporation, 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 Company is the administrator for Regions Xxxxxx Xxxxxx Select
Funds (the "Fund Company") and desires that BISYS perform certain administration
services for certain investment portfolios of the Fund Company, 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 Company wish to enter into an Agreement in order to
set forth the terms under which BISYS will perform the administration services
set forth herein for the Funds as sub-administrator.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
Company and BISYS hereby agree as follows:
1. RETENTION OF BISYS
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The Company hereby retains BISYS to act as the sub-administrator of the
Funds and to furnish the 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 Company, the Fund Company or the Funds in
any way and shall not be deemed an agent of the Company, the Fund Company or the
Funds.
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 Company and the Funds, 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 Company and the Board of Trustees
of the Fund Company (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 Funds with all necessary office space, equipment,
personnel, compensation and facilities (including facilities for shareholders'
and Board 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 Fund 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 Fund Company in
preparing (i) the annual update to the Fund Company's registration statement on
Form N-1A as it relates to the Funds, (ii) other amendments to the Fund
Company's registration statement and supplements to its Prospectus and Statement
of Additional Information as they relate to the Funds, and (iii) Notices of
Annual or Special Meetings of shareholders of the Funds and proxy materials
relating thereto, and file any of the foregoing with the Securities and Exchange
Commission (the "SEC") upon the request of the Company or counsel to the Fund
Company;
(c) provide information in BISYS's possession for the annual report to
Shareholders and the semi-annual report for each of the Funds;
(d) supervise the Funds' transfer agent with respect to the payment of
dividends and other distributions to shareholders;
(e) calculate performance data of the Funds for dissemination to up to six
(6) information services covering the investment company industry;
(f) assist with the design, development, and operation of the Funds,
including new classes, investment objectives, policies and structure;
(g) advise the Company and the Board on matters concerning the Funds and
their affairs;
(h) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Funds as the Company and BISYS shall determine
desirable.
(i) 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
diversification, distribution and income requirements, all as are determinable
based upon the Fund's accounting records;
(j) provide assistance and guidance to the Company and the Fund Company
with respect to matters governed by or related to regulatory requirements and
developments including monitoring regulatory and legislative developments which
may effect the Funds, and assisting in strategic planning in response thereto;
assisting the Company, the Fund Company and the Funds in responding to and
providing documents for routine regulatory examinations or investigations; and
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working closely with counsel to the Company and the Fund Company in response to
such routine or non-routine regulatory matter; and
(k) assist the Company and the Fund Company in preparing for and
administering Board meetings by preparing the relevant sections of the Board
materials pertaining to the responsibilities of BISYS and performing such other
Board meeting functions as agreed by the parties.
(l) To assist the Fund Company 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 Fund Company, "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 Funds and included in financial information
certified as required by certain Fund Company 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 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 Fund Company has selected the appropriate accounting
policies for the Funds.
(m) BISYS shall perform such other services for the Funds 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 Company 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 Trustees of the Fund
Company 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 Company or
the Fund Company retained by the Company or the Board to perform services on
behalf of the Fund Company or the Funds.
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(b) The Company assumes and shall pay or cause to be paid all other
expenses of the Company, the Fund Company and the Funds 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 who are not affiliated persons of BISYS or any affiliated
corporation of BISYS (fees for other "interested Trustees" may be paid by
parties other than the Company), 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 Company shall pay
monthly to BISYS compensation at an annual rate of 0.06% (6 basis points) of the
average daily net assets of the Funds. In addition to the foregoing, the Company
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
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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
Company, the Fund Company or any Fund 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 Company'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
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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. ACTIVITIES OF BISYS
-------------------
The services of BISYS rendered 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, directors, officers,
employees and shareholders of the Company or the Fund Company 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 Company or the Fund Company, and that BISYS
may be or become interested in the Fund Company as a Shareholder or otherwise.
7. DURATION OF THIS AGREEMENT
--------------------------
(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
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
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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 Company's failure to pay an amount to BISYS which is the subject of a
good faith dispute, if (x) the Company is attempting in good faith to resolve
such dispute with as much expediency as may be possible under the circumstances,
and (y) the Company 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 Company, 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 Company upon such termination shall
be immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Company, in addition to the fees and
disbursements provided by 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 Company and/or
the Fund Company's distributor or investment adviser and/or other parties of the
Fund Company'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 Company 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.
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
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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
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 Company 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 Company, the
Fund Company, 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 Company 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
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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.
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 Company or the Fund Company shall be
prepared and maintained at the expense of BISYS, but shall be the property of
the Fund Company and will be surrendered promptly to the Company or the Fund
Company on request, and made available for inspection by the Company or the Fund
Company or by the SEC at reasonable times.
BISYS may at its option at any time, and shall promptly upon the Company or
the Fund Company's demand, turn over to the Company or the Fund Company 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,
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 Company or the Fund Company unless the Company or
the Fund Company 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 Company and follow the Company or the Fund
Company'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 Company or the Fund Company. BISYS shall provide the
Company with 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 Company, BISYS shall provide evidence that coverage is in
place. BISYS shall notify the Company 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 Company of any material claims against it with respect to
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services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Company should the total outstanding claims made
by 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 Company at any time for instructions and may consult
with counsel for the Fund 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 Company 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
Company, 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 Company 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 Fund Company 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 Fund Company unless BISYS receives written instructions
to the contrary in a timely manner from the Company.
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 Company or the Fund
Company until receipt of written notice thereof from the Company or the Fund
Company.
13. NOTICE
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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 Company, to 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx, 00000, Attn: Xxxxxxx X. Xxxxxxx; and 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
-------------
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.
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15. REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to BISYS that this Agreement has been
duly authorized by the Company and, when executed and delivered by the Company,
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company 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 Fund Company 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
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Nonpublic personal financial information relating to consumers or customers
of the Fund Company provided by, or at the direction of the Company or the Fund
Company 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 Company or
the Fund Company or as required or permitted by law. BISYS 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 Fund
Company. The Company represents to BISYS that it and the Fund Company have each
adopted a Statement of their respective 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.
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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 supersedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein. This Agreement shall not supersede or otherwise affect
any provision of 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 Company
or the Fund Company (other than an officer or employee of BISYS) does not
conflict with or violate any requirements of the Fund Company's Declaration of
Trust, Bylaws 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.
XXXXXX XXXXXX & COMPANY, INC.
By:
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Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
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Name:
Title:
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SCHEDULE A
ADMINISTRATION AGREEMENT BETWEEN
XXXXXX XXXXXX & COMPANY, INC.
AND BISYS FUND SERVICES OHIO, INC.
DATE: JANUARY 3, 2005
FUNDS
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Regions Xxxxxx Xxxxxx Select Treasury Money Market Fund
Regions Xxxxxx Xxxxxx Select Government Money Market Fund
12
FORM OF
AMENDMENT TO SUB-ADMINISTRATION 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 Sub-Administration Agreement, dated January 3,
2005, (the "Agreement"), under which BISYS performs certain administration
services for certain investment portfolios of the Region Xxxxxx Xxxxxx Select
Funds (the "Fund Company") (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 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 being transferred to the Fund Company as of the date
hereof (the "Consolidation");
WHEREAS, the Company desires that BISYS continue to perform certain
administration 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.
(a) The term "Funds" as used in the Agreement shall mean the LEADER Funds
and the MK Funds, collectively. Schedule A to the Agreement is hereby deleted
and replaced with the Schedule A attached hereto.
(b) Section 4(a) of the Agreement is hereby deleted and replaced with the
following:
"(a) For the services to be rendered, the facilities furnished and the
expenses assumed by BISYS pursuant to this Agreement, the Company shall pay
monthly to BISYS compensation at an annual rate of (i) 0.105% (10.5 basis
points) of the average daily net assets of the LEADER Funds, and (ii) 0.06% (6
basis points) of the average daily net assets of the MK Funds. In addition to
the foregoing, the Company 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 (A) Board meetings and (B) any other meetings for which such
attendance is requested or agreed upon by the parties."
2. TERM. The following paragraph is added as new Section 6(d) of the
Agreement:
"(d) The parties acknowledge that the Fund Company 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
7(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.
* * * * *
2
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:
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Name:
Title:
3
AMENDED SCHEDULE A
ADMINISTRATION AGREEMENT BETWEEN
XXXXXX XXXXXX & COMPANY, INC.
AND BISYS FUND SERVICES OHIO, INC.
DATE: FEBRUARY 18, 2005
LEADER FUNDS
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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
MK FUNDS
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Regions Xxxxxx Xxxxxx Select Treasury Money Market Fund
Regions Xxxxxx Xxxxxx Select Government Money Market Fund
4
