FORM OF
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 1st day of August, 2004 between THE VICTORY
INSTITUTIONAL FUNDS (the "Trust"), a Delaware business trust having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, on
behalf of each investment portfolio of the Trust listed on Schedule A, and such
additional investment portfolios as are hereafter created (individually referred
to herein as a "Fund" and collectively, as the "Funds"), individually and not
jointly, and BISYS FUND SERVICES OHIO, INC. ("BISYS"), a corporation organized
under the laws of the State of Ohio and having its principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Trust desires that BISYS perform certain fund accounting
services for each Fund; and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS FUND ACCOUNTANT. BISYS will keep and maintain the
following books and records of each Fund pursuant to Rule 31a-1 under the
Investment Company Act of 1940, as amended (the "Rule"):
a. 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;
b. 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;
c. Separate ledger accounts required by subsection (b)(2)(ii) and
(iii) of the Rule; and
d. A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the
Rule.
All such books and records shall be the property of the Trust, and BISYS
agrees to make such books and records available for inspection by the Trust or
by the Securities and Exchange commission at reasonable times and otherwise to
keep confidential all records and other information relative to the Trust;
except when requested to divulge such information by duly-constituted
authorities or court process, or when requested by the Trust.
In addition to the maintenance of the books and records specified above,
BISYS shall perform the following account services daily for each Fund:
a. Calculate the net asset value per Share utilizing prices
obtained from the sources described below;
b. 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; c. Verify and reconcile with
the Funds' custodian all daily trade activity;
d. 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;
e. 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;
f. Calculate the dividend and capital gain distribution, if any;
g. Calculate the yield;
h. Provide the following reports:
(i) a current security position report;
(ii) a summary report of transactions and pending maturities
(including the principal, cost, and accrued interest on
each portfolio security in maturity date order); and
(iii) a current cash position report (including cash available
from portfolio sales and maturities and sales of a
Fund's Shares less cash needed for redemptions and
settlement of portfolio purchases);
i. Such other similar services with respect to a Fund as may be
reasonable requested by the Trust.
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2. SUBCONTRACTING.
BISYS may, at its expense, subcontract with any entity or person
acceptable to the Trust in writing concerning the provision of the services
contemplated hereunder; provided, however, that BISYS shall not be relieved of
any of its obligations under this Agreement by the appointment of such
subcontractor and provided further, that BISYS shall be responsible, to the
extent provided in Section 7 hereof, for all acts of such subcontractor as if
such acts were its own.
3. COMPENSATION.
The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in,
Schedule B hereto, as such Schedule may be amended from time to time.
4. REIMBURSEMENT OF EXPENSES AND MISCELLANEOUS SERVICE FEES.
a. In addition to paying BISYS the fees described in the Fee
Agreement, the Trust agrees to reimburse BISYS for its
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(e) herein;
(v) Any expenses BISYS shall incur at the written direction
of the Adviser or an officer of the Trust thereunto duly
authorized; and
(vi) Any additional expenses reasonably incurred by BISYS in
the performance of its duties and obligations under this
Agreement.
b. In addition, BISYS shall be entitled to receive the following
amounts:
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i. Systems development fees billed at an hourly rate of
$150 per hour, as approved by the Adviser or 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 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.
5. EFFECTIVE DATE. This Agreement shall become effective with respect
to a Fund as of August 1, 2004 (the "Effective Date").
6. DURATION AND TERMINATION. This Agreement shall become effective on
the Effective Date and, unless earlier terminated as provided herein, shall
continue as to a particular Fund until March 31, 2006 (the "Initial Term").
Thereafter, if not terminated, this Agreement shall continue automatically as to
a particular Fund for successive terms of two years ("Rollover Periods");
provided that such continuance is specifically approved by a vote of a majority
of those members of the Board of Trustees of the Trust who are not parties to
this Agreement or "interested persons" of any such party, and by the vote of the
Trust's Board of Trustees or a majority of the outstanding voting securities of
such Fund. This Agreement may be terminated without penalty (a) by provision of
a notice of nonrenewal in the manner set forth below, (b) upon mutual agreement
of the parties, or (c) for "cause" (as defined below) by the party alleging
cause upon the provision of sixty days' notice. Written notice of nonrenewal
must be provided at least sixty days prior to the end of the Initial Term or any
Rollover Period, as the case may be. After such termination, for so long as
BISYS, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due BISYS and 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
compensation described under Section 2 hereof, the amount of all of BISYS' cash
disbursements for services in connection with BISYS' activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents, or
any copies thereof. Subsequent to such termination for a reasonable fee, BISYS
will provide the Trust with reasonable access to any Trust documents or records
remaining in its possession.
For purposes of this Agreement, "cause" shall mean (a) a
material breach that has not been cured within 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
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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.
If, for any reason other than nonrenewal, mutual agreement of the
parties or "cause," as defined above, BISYS' 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-accountant appointed by BISYS as provided in Section 2 hereof), then the
Trust shall make a one-time cash payment, in consideration of the fee structure
and services to be provided under this Agreement, and not as a penalty, to BISYS
equal to the balance due BISYS for the remainder of the then-current term of
this Agreement, assuming for purposes of calculation of the payment that such
balance shall be based upon the average amount of the Trust's daily net assets
for the twelve months prior to the date BISYS is replaced or a third party is
added.
In the event the Trust is merged into another legal entity in part
or in whole pursuant to any form of business reorganization or is liquidated in
part or in whole prior to the expiration of the then-current term of this
Agreement, the parties acknowledge and agree that the liquidated damages
provision set forth above shall be applicable in those instances in which BISYS
is not retained to provide fund accounting services consistent with this
Agreement. The one-time cash payment referenced above shall be due and payable
on the day prior to the first day in which BISYS is replaced or a third party is
added.
The parties further acknowledge and agree that, in the event 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.
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' reasonable cash disbursements and any cash
disbursements approved by the Trust in connection with BISYS' 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.
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7. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY.
BISYS shall use 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 confirmed 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 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 caused by events beyond its reasonable
control.
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 PUNITIVE OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT
OF THE PARTIES.
8. LEGAL ADVICE.
BISYS shall notify the Trust at any time BISYS believes that it is
in need of the advice of counsel to the Trust with regard to BISYS'
responsibilities and duties pursuant to this Agreement. The Trust shall
authorize counsel to the Trust to give such advice to BISYS, however, this
Agreement shall not obligate counsel to the Trust to give such advice. BISYS may
rely upon the advice of counsel to the Trust, or any other counsel authorized by
the Trust, and shall in no event be liable to the Trust or any Fund or any
shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
9. INSTRUCTIONS.
Whenever BISYS is requested or authorized to take action hereunder,
BISYS shall be entitled to rely upon any certificate, letter or other instrument
or communication, reasonably believed by BISYS to be genuine and to have been
properly made, signed or authorized by an officer or other authorized agent of
the Trust, and shall be entitled to receive as conclusive proof of any fact or
matter required to be ascertained by it hereunder a certificate signed by an
officer of the Trust or any other person authorized by the Trust's Board of
Trustees (hereafter referred to as the "Trustees").
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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 unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
10. INDEMNIFICATION.
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'
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, sub-administrator, 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; and further provided that prior
to confessing or settling any claim against it which may be the subject of this
indemnification, BISYS shall give the Trust written notice of and reasonable
opportunity to defend against said claim in its own name or in the name of
BISYS.
BISYS shall indemnify, defend, and hold the Company harmless from
and against any and all third party 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.
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
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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. 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.
11. RECORD RETENTION AND CONFIDENTIALITY.
BISYS shall keep and maintain on behalf of the Trust all books and
records which the Trust or 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 Investment Company Act of 1940, as
amended (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 or by the Securities and
Exchange Commission (the "Commission") 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
a shareholder or shareholder's agent with respect to information concerning an
account as to which such shareholder has either a legal or beneficial interest
or when requested by the Trust or the dealer of record as to such account.
BISYS and the Trust will each treat as proprietary and confidential
any facts, circumstances, information, plans, projects and technical or
commercial knowledge gained about the other party through the relationship
created by this Agreement, except that information in the public domain and
technical, operational or commercial knowledge that was or is independently
discovered or developed shall not be subject to any such restriction. Each party
agrees that it will not disclose any such covered proprietary or confidential
information gained in relation to the other party to any unaffiliated third
parties, except (i) in the case of disclosure by BISYS, to a Sub-Fund
accountant, or to any third party vendor used by BISYS, provided that further
dissemination inconsistent with this provision would be prohibited, (ii) to
financial or legal advisers (in either case in such manner as to ensure no
further dissemination), (iii) with the written consent of the other party; (iv)
as may be required by law, or (v) as necessary to gain or retain regulatory
approvals. The parties further agree that a breach of this paragraph by either
party would irreparably damage the other party, and accordingly agree that each
party shall be entitled to an injunction or other equitable relief to prevent
the breach or a further breach of this provision.
12. REPORTS. BISYS will 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
8
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.
13. RIGHTS OF OWNERSHIP. All computer programs and procedures developed
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 will be furnished to the Trust in appropriate form as soon as
practicable after termination of this Agreement for any reason.
14. 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' 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.
15. REPRESENTATIONS OF THE TRUST. The Trust certifies to BISYS that: (1)
as of the close of business on the Effective Date, each Fund that is in
existence as of the Effective Date 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.
16. REPRESENTATIONS OF BISYS. 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' 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 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.
17. INSURANCE. 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. BISYS shall notify the Trust should any
of its insurance coverage be canceled or reduced. Such notification shall
include the date of change and the reasons therefor. BISYS shall notify the
Trust of any material claims against it with respect to services performed under
this Agreement,
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whether or not they may be covered by insurance, and shall notify the Trust from
time to time as may be appropriate should the total outstanding claims made by
BISYS under its insurance coverage materially impair, or threaten to impair, the
adequacy of its coverage.
18. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS. The Trust has
furnished to BISYS the following (receipt of which is acknowledged):
a. Copies of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the
state in which such document has been filed.
b. Copies of the following documents:
(i) The Trust's Bylaws and any amendments thereto; and
(ii) Certified copies of resolutions of the Trustees covering
the approval of this Agreement, authorization of BISYS
to act as fund accountant, 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.
c. A list of all the officers of the Trust, together with
specimen signatures of those officers who are authorized to
instruct BISYS in all matters.
d. Two copies of the Prospectuses and Statements of Additional
Information for each Fund.
19. INFORMATION FURNISHED BY BISYS. BISYS shall, upon request, furnish
certified copies of corporate actions covering the following matters:
a. Approval of this Agreement, 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
and to provide accounting services for the Trust.
20. 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 18 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' approval of such amendments or
changes.
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21. RELIANCE ON AMENDMENTS. BISYS may rely on any amendments to or
changes in any of the documents and other items to be provided by the Trust
pursuant to Sections 18 and 20 of this Agreement and the Trust hereby
indemnifies and holds harmless BISYS from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS in reasonable reliance
upon such amendments and/or changes. Although BISYS is authorized to rely on the
above-mentioned amendments to and changes in the documents and other items to be
provided pursuant to Sections 18 and 20 hereof, in the event the same relate to
services provided by BISYS hereunder, BISYS shall have no liability for failure
to comply with or take any action in conformity with such amendments or changes
unless the Trust first obtains BISYS' written consent to and approval of such
amendments or changes.
22. COMPLIANCE WITH LAW. Except for the obligations of BISYS set forth
in Section 11 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. The
Trust represents and warrants that no shares of the Trust will be offered to the
public until the Trust's registration statement under the Securities Act and the
1940 Act has been declared or becomes effective.
23. ACTIVITIES OF BISYS. 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.
24. NOTICES. Any notice provided hereunder shall be sufficiently given
when sent by registered or certified mail to the party required to be served
with such notice, at the following address: if to the Trust, at c/o Victory
Capital Management Inc., Investment Products Group, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President, with a copy to ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇ ▇.
▇▇▇▇▇, Esquire; and if to BISYS, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
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.
25. HEADINGS. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
26. ASSIGNMENT. 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
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consent of the other party. This Section 25 shall not limit or in any way affect
BISYS' right to appoint a Sub-fund accountant pursuant to Section 2 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
27. GOVERNING LAW. This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of the State of Ohio.
28. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. A copy of
the Trust's Certificate of Trust is on file with the Secretary of the State of
Delaware, and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Trust as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees or
Shareholders individually but are binding only upon the assets and property of
the Trust.
29. PRIVACY. Nonpublic personal financial information relating to
consumers or customers of the Trust provided by, or at the direction of the
Trust or the Trust's Adviser to BISYS, or collected or retained by BISYS to
perform its duties as fund accountant of the Funds 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, the Trusts' Adviser 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 of the Trust. The Trust
represents to BISYS that it has adopted a Statement of its privacy policies and
practices as required by Securities and Exchange Commission Regulation S-P and
agrees to provide BISYS with a copy of that statement annually.
30. 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 supercedes all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the 1998
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. For special
cases, the parties hereto
12
may amend such procedures set forth herein as may be
appropriate or practical under the circumstances, and BISYS
may conclusively assume that any special procedure which has
been approved by the Trust does not conflict with or violate
any requirements of its Declaration of Trust or then-current
prospectuses, or any rule, regulation or requirement of any
regulatory body.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
THE VICTORY INSTITUTIONAL
FUNDS, on behalf of each
Fund listed on Schedule A,
individually and not
jointly
By: __________________________________
Title: _________________________________
BISYS FUND SERVICES OHIO, INC.
By: __________________________________
Title: _________________________________
13
Schedule A
to the Fund Accounting Agreement
between The Victory Institutional Funds
and BISYS Fund Services Ohio, Inc.
Dated as of August 1, 2004
Name of Portfolio
-----------------
1. Victory Institutional Liquid Reserves Fund
A-1
Schedule B
to the Fund Accounting Agreement
between The Victory Institutional Funds
and BISYS Fund Services Ohio, Inc.
Dated as of August 1, 2004
BISYS shall receive $25,000 per annum for fund accounting services for the
Victory Institutional Liquid Reserves Fund.
Fees for additional Funds or Classes added to the Trust will be agreed at the
time such Fund or Class is added to the Agreement.
In addition, BISYS shall be entitled to receive miscellaneous service fees and
out-of pocket expenses in accordance with Section 4 hereof.
B-1