Exhibit (13)(b)
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT ("Agreement") is made this 18th day of
February 2005 by and between Regions Xxxxxx Xxxxxx Select Funds, a Massachusetts
business trust (the "Trust"), having its principal place of business at 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx 00000, on behalf of Regions Xxxxxx Xxxxxx Select
LEADER Growth Equity Fund, Regions Xxxxxx Xxxxxx Select LEADER Growth & Income
Fund, Regions Xxxxxx Xxxxxx Select LEADER Balanced Fund, Regions Xxxxxx Xxxxxx
Select LEADER Tax-Exempt Bond Fund, Regions Xxxxxx Xxxxxx Select LEADER
Intermediate Bond Fund, Regions Xxxxxx Xxxxxx Select LEADER Tax-Exempt Money
Market Fund and Regions Xxxxxx Xxxxxx Select LEADER Money Market Fund (each a
"Fund" and collectively, the "Funds"), and Xxxxxx Xxxxxx & Company, Inc. (the
"Administrator"), a Tennessee corporation, having its principal place of
business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000.
WHEREAS, the Trust, an open-end, management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), wishes to
retain the Administrator to provide administrative services to the Funds; and
WHEREAS, the Administrator is willing to furnish such services on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. APPOINTMENT OF THE ADMINISTRATOR. The Trust hereby appoints the
Administrator to act as the administrator for the Funds for the period, in the
manner, and on the terms set forth in this Agreement. The Administrator hereby
accepts such appointment and agrees during such period to render the services
and to assume the obligations hereinafter set forth. The Administrator shall for
all purposes herein be deemed to be an independent contractor and shall, except
as expressly provided or authorized (whether herein or otherwise), have no
authority to act for or represent the Funds in any way or otherwise be deemed an
agent of the Funds.
2. ADMINISTRATIVE SERVICES. As administrator, and subject to the
supervision and control of the Board of Trustees (the "Board") of the Trust, the
Administrator shall perform (or supervise the performance by others) and will
provide facilities, equipment and personnel to carry out the following
administrative services for operation of the business and affairs of the Funds:
(i) furnish without cost to the Funds, or pay the cost of, such office
space, office equipment and office facilities as are adequate for
the needs of the Funds;
(ii) provide, without remuneration from or other cost to the Funds, the
services of individuals competent to perform all of the executive,
administrative and clerical functions of the Funds that are not
performed by employees or other agents engaged by the Funds or by
the Administrator acting in some other capacity pursuant to a
separate agreement or arrangement with the Funds;
(iii) assist the Funds in selecting and coordinating the activities of the
other agents engaged by the Trust, including the Fund's dividend
disbursing agent, custodian, independent public accountants and
legal counsel;
(iv) authorize and permit the Administrator's directors, officers or
employees who may be elected or appointed as officers of the Trust
or trustees of the Trust to serve in such capacities, without
remuneration from or other cost to the Funds;
(v) assure that all financial, accounting and other records required to
be maintained and preserved by the Trust are maintained and
preserved by it or on its behalf in accordance with applicable laws
and regulations;
(vi) assist in the preparation of (but not pay for) all periodic reports
by the Funds to shareholders of the Funds and all reports and
filings required to maintain the registration or qualification of
the Funds and the shares of the Funds, or to meet other regulatory
or tax requirements applicable to the Funds or the shares of the
Funds, under federal and state securities and tax laws;
(vii) respond to telephonic and in-person inquiries from existing
shareholders or their representatives requesting information
regarding matters such as shareholder account or transaction status,
net asset value of Fund shares, and Fund performance, Fund services,
plans and options, Fund investment policies, Fund portfolio
holdings, and Fund distributions and classification thereof for tax
purposes;
(viii) handle shareholder complaints and correspondence directed to or
brought to the attention of the Administrator; generate or develop
and distribute special data, notices, reports, programs and
literature required by large shareholders, by shareholders with
specialized informational needs, or by shareholders generally in
light of developments, such as changes in tax laws; and
(ix) provide such other services required by the Trust as the parties may
from time to time agree in writing are appropriate to be provided
under this Agreement.
The Trust understands and acknowledges that the Administrator may delegate
to third parties the performance of all or part of the administrative
services required to be performed by the Administrator hereunder.
3. BOOKS AND RECORDS. The Administrator 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 the Administrator
on behalf of the Fund shall be the property of the Trust and will be made
available or surrendered to the Trust promptly upon request. In the case of any
request or demand for the inspection of such records by another party, the
Administrator shall notify the Trust and follow the Trust's instructions as to
permitting or refusing such inspection.
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4. REPORTS. The Administrator shall furnish to or place at the disposal
of the Trust such information, evaluations, analyses and opinions formulated or
obtained by the Administrator in the discharge of its duties as the Trust may,
from time to time, reasonably request. The Trust shall furnish the Administrator
with such documents and information with regard to its affairs as the
Administrator may, at any time or from time to time, reasonably request in order
to discharge its obligations under this Agreement.
5. TRUST PERSONNEL. The Administrator agrees to permit individuals who
are directors, officers or employees of the Administrator to serve (if duly
appointed or elected) as trustees, officers or employees of the Trust, without
remuneration from or other cost to the Trust.
6. EXPENSES. The Administrator shall be responsible for expenses
incurred in providing office space, equipment and personnel as may be necessary
or convenient to provide administrative services to the Funds, including the
payment of all fees, expenses and salaries of the trustees, officers or
employees of the Trust who are directors, officers or employees of the
Administrator. The Funds shall bear the expense of their operation, except those
specifically allocated to the Administrator under this Agreement or under any
separate agreement between the Trust and the Administrator. Subject to any
separate agreement or arrangement between the Fund and the Administrator, the
expenses hereby allocated to each Fund, and not to the Administrator, include,
but are not limited to: (i) organizational expenses; (ii) legal and audit
expenses; (iii) borrowing expenses; (iv) interest; (v) taxes; (vi) governmental
fees; (vii) fees, voluntary assessments and other expenses incurred in
connection with membership in investment company organizations; (viii) the cost
(including brokerage commissions or charges, if any) of securities purchased or
sold by the Fund and any losses incurred in connection therewith; (ix) fees of
custodians, transfer agents, registrars or other agents; (x) expenses of
preparing share certificates; (xi) expenses relating to the redemption or
repurchase of shares; (xii) expenses of registering and qualifying shares for
sale under applicable federal law and maintaining such registrations and
qualifications; (xiii) expenses of preparing, setting in print, printing and
distributing prospectuses, proxy statements, reports, notices and dividends to
shareholders; (xiv) cost of stationery; (xv) costs of shareholders and other
meetings of the Trust; (xvi) compensation and expenses of the independent
trustees of the Trust; and (xvii) the Fund's portion of premiums of any fidelity
bond and other insurance covering the Fund and its officers and trustees.
7. COMPENSATION. For the services and facilities to be furnished and
expenses assumed hereunder, the Administrator shall receive from each Fund an
administration fee at the annual rate listed along with the Fund's name in
Schedule A attached hereto. This administration fee shall be payable monthly as
soon as practicable after the last day of each month based on the average of the
daily values placed on the net assets of the Fund as determined at the close of
business on each day throughout the month. The assets of the Fund will be valued
separately as of the close of regular trading on the New York Stock Exchange
(currently 4:00 p.m., Eastern time) on each business day throughout the month
or, if the Fund lawfully determines the value of the net assets of the Fund as
of some other time on each business day, as of such time with respect to the
Fund. The first payment of such fee shall be made as promptly as possible at the
end of the month next succeeding the effective date of this Agreement. In the
event that the Administrator's right to such fee commences on a date other than
the last day of the month, the fee for such month shall be based on the average
daily assets of the Fund in that period from the date of commencement to the
last day of the month. If the Fund determines the value of the net assets of the
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Fund more than once on any business day, the last such determination on that day
shall be deemed to be the sole determination on that day. The value of net
assets shall be determined pursuant to the applicable provisions of the Fund's
Amended and Restated Declaration of Trust ("Declaration of Trust"), its By-Laws
and the 1940 Act. If, pursuant to such provisions, the determination of the net
asset value of the Fund is suspended for any particular business day, then the
value of the net assets of the Fund on that day shall be deemed to be the value
of its net assets as determined on the preceding business day. If the
determination of the net asset value of the Fund has been suspended for more
than one month, the Administrator's compensation payable at the end of that
month shall be computed on the basis of the value of the net assets of the Fund
as last determined (whether during or prior to such month).
8. NON-EXCLUSIVE SERVICES. Nothing in this Agreement shall limit or
restrict the right of any director, officer or employee of the Administrator who
may also be a trustee, officer or employee of the Trust, to engage in any other
business or to devote his time and attention in part to the management or other
aspects of any other business, whether of a similar nature or a dissimilar
nature, nor to limit or restrict the right of the Administrator to engage in any
other business or to render services of any kind, including administrative
services, to any other corporation, firm, individual or association, provided
that any such other services and activities do not, during the term of this
Agreement, interfere, in a material manner, with the Administrator's ability to
meet all of its obligations to the Trust hereunder.
9. LIMITATION OF LIABILITY.
9.1 LIABILITY OF THE ADMINISTRATOR. Neither the Administrator
nor any director, officer or employee of the Administrator performing services
for the Funds at the direction or request of the Administrator in connection
with the Administrator's discharge of its obligations hereunder shall be liable
for any error of judgment or mistake of law or for any loss suffered by the
Trust or the Funds in connection with any matter to which this Agreement
relates; provided that nothing herein contained shall be construed (i) to
protect the Administrator against any liability to the Trust or the Funds or
their shareholders to which the Administrator would otherwise be subject by
reason of the Administrator's willful misfeasance, bad faith, or gross
negligence in the performance of the Administrator's duties, or by reason of the
Administrator's reckless disregard of its obligations and duties under this
Agreement ("disabling conduct"), or (ii) to protect any director, officer or
employee of the Administrator who is or was a trustee or officer of the Trust
against any liability to the Trust or the Funds or their shareholders to which
such person would otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of such person's office with the Trust.
9.2 INDEMNIFICATION BY THE TRUST. The Trust will indemnify
the Administrator against, and hold it harmless from, any and all expenses
(including reasonable counsel fees and expenses) incurred investigating or
defending against claims for losses or liabilities described in Section 9.1 not
resulting from negligence, disregard of its obligations and duties under this
Agreement or disabling conduct by the Administrator. Indemnification shall be
made only following: (i) a final decision on the merits by a court or other body
before whom the proceeding was brought that the Administrator was not liable by
reason of negligence, disregard of its obligations and duties under this
Agreement or disabling conduct or (ii) in the absence of such a decision, a
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reasonable determination, based upon a review of the facts, that the
Administrator was not liable by reason of negligence, disregard of its
obligations and duties under this Agreement or disabling conduct by (a) the vote
of a majority of a quorum of trustees of the Trust who are neither "interested
persons" of the Trust nor parties to the proceeding ("disinterested non-party
trustees") or (b) an independent legal counsel in a written opinion. The
Administrator shall be entitled to advances from the Trust for payment of the
reasonable expenses incurred by it in connection with the matter as to which it
is seeking indemnification hereunder in the manner and to the fullest extent
permissible under the laws of the Commonwealth of Massachusetts. The
Administrator shall provide to the Trust a written affirmation of its good faith
belief that the standard of conduct necessary for indemnification by the Trust
has been met and a written undertaking to repay any such advance if it should
ultimately be determined that the standard of conduct has not been met. In
addition, at least one of the following additional conditions shall be met: (i)
the Administrator shall provide security in form and amount acceptable to the
Trust for its undertaking; (ii) the Trust is insured against losses arising by
reason of the advance; or (iii) a majority of a quorum of the full Board, the
members of which majority are disinterested non-party trustees, or independent
legal counsel, in a written opinion, shall have determined, based on a review of
facts readily available to the Trust at the time the advance is proposed to be
made, that there is reason to believe that the Administrator will ultimately be
found to be entitled to indemnification hereunder.
9.3 INDEMNIFICATION BY THE ADMINISTRATOR. The Administrator
shall indemnify the Trust and hold it harmless from and against any and all
losses, damages and expenses, including reasonable attorneys' fees and expenses,
incurred by the Trust which result from: (i) the Administrator's failure to
comply with the terms of this Agreement; or (ii) the Administrator's lack of
good faith in performing its obligations hereunder; or (iii) the Administrator's
negligence or misconduct or that of its employees, agents or contractors in
connection herewith. The Trust shall not be entitled to such indemnification in
respect of actions or omissions constituting negligence or misconduct on the
part of the Trust or its employees, agents or contractors other than the
Administrator unless such negligence or misconduct results from or is
accompanied by negligence or misconduct on the part of the Administrator, any
affiliated person of the Administrator, or any affiliated person of an
affiliated person of the Administrator. Before confessing any claim against it,
which may be subject to indemnification hereunder, the Trust shall give the
Administrator reasonable opportunity to defend against such claim in its own
name or in the name of the Trust.
10. TERM OF AGREEMENT. The term of this Agreement shall begin on the
date first written above and, unless sooner terminated as hereinafter provided,
this Agreement shall remain in effect through August 31, 2006. Thereafter, this
Agreement shall continue in effect from year to year, subject to the termination
provisions and all other terms and conditions hereof; provided such continuance
is approved at least annually by vote or written consent of the trustees,
including a majority of the trustees who are not interested persons of either
party hereto ("Independent Trustees"); and provided further, that the
Administrator shall not have notified the Trust in writing at least sixty (60)
days prior to the first expiration date hereof or at least sixty (60) days prior
to any expiration date in any year thereafter that it does not desire such
continuation. The Administrator shall furnish the Trust, promptly upon its
request, such information as may reasonably be necessary to evaluate the terms
of this Agreement or any extension, renewal or amendment thereof.
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11. AMENDMENT OR ASSIGNMENT OF AGREEMENT. This Agreement may be amended
at any time, but only by written agreement between the Administrator and the
Trust, which agreement has been authorized by the Board, including the vote or
written consent of a majority of the Independent Trustees. This Agreement may
not be assigned by either party without the written consent of the other party;
provided, however, that the Administrator may, at its expense and with the
advance approval of the Board, subcontract with any entity or person concerning
the provision of administration services contemplated hereunder (a
"Sub-Administrator"). The Administrator shall not, however, be relieved of any
of its obligations under this Agreement by the appointment of any
Sub-Administrator or other subcontractor and the Administrator shall be
responsible, to the extent provided in Section 9 hereof, for all acts of any
Sub-Administrator as if such acts were its own.
12. TERMINATION OF AGREEMENT. This Agreement may be terminated at any
time by either party hereto, without the payment of any penalty, upon at least
sixty (60) days' prior written notice to the other party; provided that, in the
case of termination by the Trust, such action shall have been authorized by the
Board, including the vote or written consent of a majority of the Independent
Trustees.
13. INTERPRETATION AND DEFINITION OF TERMS. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act shall be
resolved by reference to such term or provision of the 1940 Act and to
interpretation thereof, if any, by the United States courts or, in the absence
of any controlling decision of any court, by rules, regulations or orders of the
Securities and Exchange Commission validly issued pursuant to the 1940 Act.
Specifically, the terms "assignment," "interested person" and "majority of the
outstanding voting securities" shall have the meanings given to them by Section
2(a) of the 1940 Act, subject to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
14. GOVERNING LAW. Except insofar as the 1940 Act or other federal laws
and regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the Commonwealth of
Massachusetts.
15. NOTICE. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed postage prepaid to the other party to this
Agreement at its principal place of business.
16. CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
17. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
18. MATTERS RELATING TO THE TRUST AS A MASSACHUSETTS BUSINESS TRUST. 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 Trust personally, but shall bind only the trust property of the
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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.
IN WITNESS WHEREOF the parties have caused this instrument to be signed on
their behalf by their respective officers thereunto duly authorized all as of
the date first written above.
REGIONS XXXXXX XXXXXX SELECT FUNDS
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary and Assistant Treasurer
XXXXXX XXXXXX & COMPANY, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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SCHEDULE A
REGIONS XXXXXX XXXXXX SELECT FUNDS
AMENDED FEE SCHEDULE AS OF DECEMBER 1, 2005
Fund Percentage of Average
---- Daily Net Assets
----------------
Regions Xxxxxx Xxxxxx Select LEADER Growth 0.12%
Equity Fund
Regions Xxxxxx Xxxxxx Select LEADER Growth & 0.09%
Income Fund
Regions Xxxxxx Xxxxxx Select LEADER Balanced 0.12%
Fund
Regions Xxxxxx Xxxxxx Select LEADER Tax-Exempt 0.12%
Bond Fund
Regions Xxxxxx Xxxxxx Select LEADER 0.12%
Intermediate Bond Fund
Regions Xxxxxx Xxxxxx Select LEADER Tax-Exempt 0.12%
Money Market Fund
Regions Xxxxxx Xxxxxx Select LEADER Money 0.065%
Market Fund
