Exhibit(h)(2)
CO-ADMINISTRATION AGREEMENT
THIS CO-ADMINISTRATION AGREEMENT ("Agreement") is made as of [_______,
2005] by and between BISYS Fund Services Ohio, Inc. ("BISYS"), an Ohio
corporation, and Legacy Funds Group (the "Company"), a Massachusetts business
trust.
WHEREAS, the Company is registered with the Securities and Exchange
Commission (the "Commission") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act").
WHEREAS, the Company and First Financial Capital Advisors LLC. (the
"Adviser") are parties to an agreement (the "Adviser Co-Administration
Agreement") pursuant to which Adviser provides certain administrative services
to the Company and the investment portfolios of the Company known as The Legacy
Funds (individually referred to in this Agreement as a "Fund" and collectively
as the "Funds");
WHEREAS, the Company desires to retain BISYS to provide to the Company and
the Funds certain administrative services that are not provided by Adviser under
the Adviser Co-Administration Agreement;
WHEREAS, BISYS is willing to perform such services, and the Company is
willing to retain BISYS, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
the Company and Co-Administrator hereby agree as follows:
1. Retention of BISYS.
(a) The Company hereby appoints BISYS to furnish the Funds with the
services described in Schedule A to this Agreement (the "Services"). The rights
and obligations of BISYS and the Adviser as co-administrators to the Company are
several and not joint. Neither BISYS nor the Adviser shall be responsible for
the performance of the duties and responsibilities of the other, nor shall one
accede to the rights of the other, the remedies of the other, or be liable for
the actions of the other.
(b) BISYS may utilize agents and/or subcontractors ("Sub-Agents") to
perform some or all of BISYS' obligations under this Agreement; provided,
however, that BISYS shall be fully responsible for the acts of such each
Sub-Agent and shall not be relieved of any of its obligations under this
Agreement by the appointment of a Sub-Agent.
2. Allocation of Charges and Expenses.
Company will pay or cause to be paid all expenses of the Company not
otherwise allocated in this Agreement, 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 Adviser or any affiliated corporation of Adviser,
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of the Adviser for services
rendered to the Company.
3. Compensation of BISYS.
(a) In consideration of BISYS' performance of the Services, Company
will pay BISYS the fees set forth in the Omnibus Fee Agreement by and between
the Company and BISYS dated as of [_________, 2005] (the "Fee Agreement"). In
addition to such fees, Company will reimburse BISYS for all of its reasonable
out-of-pocket expenses incurred in providing the Services, including, but not
limited to, production of board books and materials, and travel and lodging
expenses incurred by officers and employees of BISYS in connection with
attendance at (i) meetings of the Company's board of trustees (the "Board"), and
(ii) any other meetings for which such attendance is requested or agreed upon by
the parties.
(b) If this Agreement becomes effective subsequent to the first day of
a month or terminates before the last day of a month, BISYS' 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' compensation for the preceding month shall be made promptly.
(c) All rights of compensation and reimbursement under this Agreement
for services performed as of the termination date shall survive the termination
of this Agreement.
4. Indemnification and Limitation of Liability of BISYS and Company.
(a) The duties of BISYS shall be confined to those expressly set forth
in this Agreement, and no implied duties are assumed by or may be asserted
against it under this Agreement. BISYS shall not be liable for any error of
judgment or mistake of law or for any loss arising out of any act or omission in
carrying out its duties under this Agreement, except a loss resulting from
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties under this
Agreement, except as may otherwise be provided under provisions of applicable
law which cannot be waived or modified by this Agreement. (As used in this
Section 4, the term "BISYS" shall include directors, officers,
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employees and other agents of BISYS as well as BISYS itself, to the extent such
persons' conduct relates to the performance of the Services under this
Agreement.) Any officer, director, employee or agent of BISYS who is or who
becomes an officer, trustee, director, employee or agent of the Company shall be
deemed, when engaged in rendering the Services under this Agreement in such
capacity, to be rendering services directly to or for the Company.
(b) So long as BISYS acts in good faith and with due diligence and
without negligence, the Company shall indemnify BISYS and hold it harmless from
and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) arising directly and proximately
out of BISYS' actions or omissions with respect to the performance of the
Services.
(c) The 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 provision contained herein shall
apply, however, it is understood that if in any case the Company may be asked to
indemnify or hold BISYS harmless, the Company shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that the BISYS will use all reasonable care to identify and
notify the Company promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Company, but failure to do so in good faith shall not affect the rights
hereunder, except to the extent the Company is materially prejudiced thereby. As
to any matter eligible for indemnification, BISYS 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 Company, which consent shall not
be withheld or delayed unreasonably.
(d) The Company 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 Company elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
it and reasonably satisfactory to BISYS. In the event that the Company elects to
assume the defense of any suit and retain counsel, BISYS shall bear the fees and
expenses of any additional counsel retained by it. The Company shall not effect
any settlement without the consent of BISYS (which shall not be withheld or
delayed unreasonably by BISYS) unless such settlement imposes no liability,
responsibility or other obligation upon BISYS and relieves it of all fault. If
the Company does not elect to assume the defense of suit, it will reimburse
BISYS for the reasonable fees and expenses of any counsel retained by BISYS. The
indemnity and defense provisions set forth herein shall indefinitely survive the
termination of this Agreement.
(e) BISYS may apply to Company at any time for instructions and may
consult with counsel for Company and with accountants and other experts with
respect to any matter arising in connection with BISYS' duties, and BISYS shall
not be liable nor accountable for any action
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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
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' responsibilities and duties pursuant to this Agreement.
After so notifying 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 Company unless relating to a matter involving BISYS' willful
misfeasance, bad faith, negligence or reckless disregard of BISYS'
responsibilities and duties.
(f) In performing the Services, BISYS may rely conclusively upon the
terms of the Prospectuses and Statement of Additional Information of the Company
relating to the relevant Funds, as well as the minutes of Board meetings (if
applicable) and other records of the Company. 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.
(g) 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, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST REVENUE
AND/OR 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.
5. Activities of BISYS.
The services of BISYS to be rendered under this Agreement 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 are or may be or
become interested in BISYS, as officers, employees or otherwise and that
directors, officers and employees of BISYS and its counsel are or may be or
become similarly interested in the Company, and that BISYS may be or become
interested in the Company as a shareholder or otherwise.
6. Duration of this Agreement.
(a) This Agreement shall continue in effect for thirty-six (36) months
from the date of this Agreement (the "Initial Term"). Thereafter, unless
otherwise terminated pursuant to this Agreement, 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
provided at least 60 days before the end of the Initial Term or any Rollover
Period, as the case may be, (ii) by mutual agreement of the parties or (iii) for
"cause," as defined below, upon the provision of 60 days advance written notice
by the party alleging cause.
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(b) In addition to the foregoing, this Agreement may be terminated for
"cause." For these purposes, "cause" shall mean (i) a material breach of this
Agreement that has not been remedied for 30 days following written notice of
such breach from the non-breaching party; (ii) a final, unappealable judicial,
regulatory or administrative ruling or order in which the party to be terminated
has been found guilty of criminal or unethical behavior in the conduct of its
business; or (iii) financial difficulties on the part of the party to be
terminated which are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent or acquiescence in, a voluntary
or involuntary case under Title 11 of the United States Code, as from time to
time is in effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors. For purposes of this
definition of "cause," a material breach shall include, but not be limited to,
any failure on the part of Company to pay the fees due and payable to BISYS
pursuant to the Fee Agreement or Section 3 of this Agreement within 60 days
following the due date.
(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' services are terminated hereunder, BISYS is replaced as administrator, or
if a third party is added by the Company to perform all or a part of the
Services, then 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 12 months or (y) if less than 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 Company and fees payable to BISYS monthly during the 12 months prior to
the date that services terminate, BISYS is replaced or a third party is added.
(d) In the event the Company or any Fund 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 administration services consistent with this
Agreement, including the level of assets subject to such services. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added.
(e) 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.
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(f) Notwithstanding the foregoing termination provisions, 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 Company, the provisions of this
Agreement, including without limitation the provisions dealing with compensation
and 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. In the event of a termination other than a termination for cause,
BISYS shall be entitled to collect from the Company, in addition to the fees and
expenses provided in Section 3 of this Agreement, the amount of all of BISYS'
reasonable cash disbursements in connection with BISYS' activities in effecting
such termination, including without limitation, the delivery to the Company,
and/or other parties of the Funds' property, records, instruments and documents.
7. Assignment.
This Agreement shall not be assignable by either party without the
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties to this Agreement and their
respective successors and permitted assigns.
8. 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 shall be the property of the Company and will be
made available to or surrendered promptly to Company upon its request.
BISYS shall otherwise keep confidential all books and records relating
to the Company and its shareholders, except when (i) disclosure is required by
law, (ii) BISYS is advised by counsel that it may incur liability or held in
contempt for failure to make a disclosure, (iii) BISYS is requested to divulge
such information by a court, governmental agency or entity or by a
self-regulatory organization registered under the Securities Exchange Act of
1934, or (iv) as requested or authorized by the Company (including pursuant to
its policies and procedures). 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.
With respect to any category of administration services that BISYS
performs jointly with the Adviser, the Company shall provide clear instructions
as to the scope of the specific services to be provided by BISYS; the
commencement date (and, if applicable, termination date) for rendering such
services; and the location (i.e. whether at the offices of the Adviser or BISYS)
where the books and records related thereto shall be maintained.
9. Definitions of Certain Terms.
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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.
10. Notice.
Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, or by nationally recognized overnight courier, addressed by the
party giving notice to the other party at the following address: if to Company,
c/o First Financial Capital Advisors LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇; and if to BISYS, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attention: 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.
11. Governing Law and Matters Relating to the Company as a Massachusetts
Business Company. This Agreement shall be construed in accordance with the laws
of the State of Ohio and the applicable provisions of the 1940 Act. To the
extent that the applicable laws of the State of Ohio, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control. It is expressly agreed that the obligations of the Company
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Company personally, but shall bind only the
trust property of the Company. The execution and delivery of this Agreement have
been authorized by the Trustees, and this Agreement has been signed and
delivered by an authorized officer of the Company, acting as such, and neither
such authorization by the Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on them personally, but shall bind only the trust property
of the Company as provided in the Company's Declaration of Trust.
12. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
13. Privacy.
BISYS acknowledges that nonpublic personal financial information
relating to consumers or customers of the Company provided by, or at the
direction of the Company to BISYS, or collected or retained by BISYS to perform
the Services shall be considered confidential information. BISYS shall not give,
sell or in any way transfer such confidential information to any person or
entity, except at the direction of Company or as required or permitted by law.
BISYS shall have in place and maintain physical, electronic and procedural
safeguards reasonably designed to protect the security, confidentiality and
integrity of, and to prevent unauthorized access to or use of records and
information relating to consumers or customers of the Company. BISYS
acknowledges
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and agrees to comply with the Company's statement of its privacy policies and
practices as required by Securities and Exchange Commission Regulation S-P.
14. Force Majuere
Neither party to this Agreement will be responsible or liable for its
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its control,
including, without limitation: any interruption, loss or malfunction of any
utility, any transportation service, the Internet, the World Wide Web, or any
other public technology infrastructure; inability to obtain transportation or a
delay in mails; governmental or securities exchange action, statute, ordinance,
rulings, regulations or direction; war, terrorism, strike, riot, emergency,
civil disturbance, vandalism, explosions, freezes, floods, fires, tornadoes,
hurricanes, acts of God or public enemy, revolutions, or insurrection.
15. Representations and Warranties of the Company.
The Company represents and warrants to BISYS that:
(a) The Company is a trust duly incorporated and validly existing
under the laws of its state of organization, and has full capacity and authority
to enter into this agreement and to carry out its obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to carry
out its business as currently conducted;
(c) It is in compliance in all material respects with all laws and
regulations applicable to its business and operations; and
(d) 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 right and remedies of
creditors and secured parties.
(e) The Company represents and warrants that (A) the provision of
certain officers of the Company by BISYS, as provided in Section 19 and Schedule
B of this Agreement, has been approved by the Board, (B) each of the Company's
AML Compliance Officer and Chief Financial Officer has been approved and
appointed as an officer of the Company by the Board, and (C) the Company shall
provide BISYS with a list of such officers.
16. Representations and Warranties of BISYS.
BISYS represents and warrants to the Company that:
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(a) It is a corporation duly incorporated and validly existing under
the laws of the state of its organization, and has full capacity and authority
to enter into this agreement and to carry out its obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to carry
out its business as currently conducted;
(c) It is, and shall continue to be, in compliance in all material
respects with all provisions of law applicable to it in connection with its
services hereunder;
(d) The various procedures and systems which it 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 and its' equipment,
facilities, and other property used in the performance of its obligations
hereunder are reasonable and 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
(e) This Agreement has been duly authorized by it and, when executed
and delivered by it, will constitute a legal, valid and binding obligation of
it, enforceable against it 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 THE ADMINISTRATORS ARE COMPLETELY DISCLAIMED.
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. 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 reduced or canceled. Such notification shall include the
date of cancellation or reduction and the reasons therefore. BISYS shall notify
the Company promptly of any material claims against it with respect to services
performed under this Agreement, whether or not they may be covered by insurance,
and shall notify the Company promptly should the total outstanding claims made
by BISYS under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
18. Information to be Furnished by the Company.
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(a) The Company will furnish to BISYS the following upon request:
(i) A copy of the Company's Certificate of Trust and any
amendments thereto;
(ii) A copy of the Company's By-laws and any amendments thereto;
(iii) A copy of the resolutions of the Board regarding (A)
approval of this Agreement and authorization for the Company to
instruct BISYS hereunder; and (B) authorization of BISYS to act as
co-administrator for the Company;
(iv) A certified list of all officers of the Funds, including the
Funds' AML Compliance Officer, and any other persons together with
specimen signatures of those officers and other persons who (except as
otherwise provided herein to the contrary) shall be authorized to
instruct BISYS in all matters. Any delay in delivery of this list
shall not relieve BISYS of any actual knowledge it may possess of any
change in authority of persons authorized to provide instructions to
BISYS;
(v) A copy of the AML Program, including any related policies and
procedures;
(vi) The Company's most recent Post-Effective Amendment to its
Registration Statement(s) under the Securities Act of 1933, as amended
(the "1933 Act"), and under the 1940 Act, on Form N-1A as filed with
the Securities and Exchange Commission (the "Commission") relating to
the Shares and any further amendment thereto;
(vii) Notification of registration of the Company under the 1940
Act on Form N-8A as filed with the Commission;
(viii) Prospectuses and Statements of Additional Information of
the Company with respect to the Funds (such prospectuses and
statements of additional information, as presently in effect and as
they shall from time to time be amended and supplemented, herein
called individually, the "Prospectus" and collectively, the
"Prospectuses"); and
(ix) The Fund DCPs (as hereinafter defined).
(b) The Company shall furnish BISYS written copies of any amendments
to, or changes in, any of the items referred to in this Section 18,
forthwith upon such amendments or changes becoming effective. In addition,
the Company agrees that no amendments will be made to the AML Program, or
the Fund DCPs 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 Company
first obtains
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BISYS's approval of such amendments or changes, which approval shall not be
withheld unreasonably.
(c) BISYS may rely on all documents furnished to it by the Company and
its agents in connection with the services to be provided under this
Agreement, including any amendments to or changes in any of the items to be
provided by the Company pursuant to this Section 15, and shall be entitled
to indemnification in accordance with this Agreement with regard to such
reliance.
19. Information Furnished by BISYS.
BISYS will furnish to the Company upon request, evidence of the
approval of this Agreement by BISYS, and authorization of a specified officer of
BISYS to execute and deliver this Agreement.
20. Compliance with Laws; Provision of AML Compliance Officers.
(a) Prospectus and Public Offering. Except for records BISYS is
obligated to keep pursuant to the first paragraph of Section 8
hereof and as specifically provided in the schedules hereto, the
Company assumes full responsibility for the preparation,
contents, and distribution of each Prospectus of the Company in
compliance with all applicable requirements of the Securities Act
of 1933, as amended (the "1933 Act"), the 1940 Act, and any other
laws, rules and regulations of governmental authorities having
jurisdiction. BISYS shall have no obligation to take cognizance
hereunder of laws relating to the sale of the Company's shares.
The Company represents and warrants that all shares of the
Company that are offered to the public are covered by an
effective registration statement under the 1933 Act and the 1940
Act.
(b) Anti-Money Laundering. The Company acknowledges that it is a
financial institution subject to the law entitled Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of 2001
and the Bank Secrecy Act and shall comply with the such Acts and
applicable regulations adopted thereunder (such Acts and
regulations collectively, the "Applicable AML Laws") in all
relevant respects.
(c) Provision of AML Compliance Officer
Subject to the provisions set forth in Section 20(b) above, this
Section 20(c), and Schedule B hereto, BISYS agrees to make
available to the Company a person to serve as the Company's AML
Compliance Officer. BISYS's obligation in this regard shall be
met by providing an appropriately qualified employee or agent of
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BISYS (or its affiliates) who, in the exercise of his or her
duties to the Company, shall act in good faith and in a manner
reasonably believed by him or her to be in the best interests of
the Company. Subject to the Company's cooperation in implementing
and complying with its AML Program, the AML Compliance Officer
will assist the Company in operating its AML Program, and shall
perform the duties assigned to the AML Compliance Officer which
are set forth in the AML Program.
The Company shall provide copies of all books and records of the
Company, as the AML Compliance Officer deems necessary or
desirable in order to carry out his or her duties hereunder on
behalf of the Company. Each party agrees to provide promptly to
the other party (and to the AML Compliance Officer), upon
request, copies of such other records and documentation relating
to the compliance by such party with Applicable AML Laws (in
relation to the Company), and each party also agrees otherwise to
assist the other party (and the AML Compliance Officer) in
complying with the requirements of the AML Program and Applicable
AML Laws.
Each party agrees to retain a copy of all documents and records
prepared, maintained or obtained by it relating to shareholders
and transactions for a period of at least five (5) years after
either the relationship with the shareholder has ended or the
execution of the transaction. The foregoing is not intended to
limit any obligation to retain any specified records for any
other period that may be specified in the AML Program or under
Applicable AML Laws.
BISYS shall be entitled to receive the fees set forth in the Fee
Agreement for the provision of the AML Compliance Officer.
(d) [Rider requested by Fund Counsel is under consideration.]
21. 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.
(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.
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(d) No provision of this Agreement may be changed, waived, discharged
or terminated, except by an instrument in writing signed by the
parties to this Agreement. For special cases, the parties hereto
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
Company 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 addition,
the Company agrees that no amendments will be made to the
Prospectuses or Statement of Additional Information of the
Company, the AML Program, or the Fund DCPs 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 Company first obtains
BISYS's approval of such amendments or changes, which approval
shall not be withheld unreasonably.
(e) It is expressly agreed that the obligations of the Company
hereunder shall not be binding upon any of the trustees,
shareholders, nominees, officers, agents or employees of the
Company personally, but shall bind only the trust property of the
Company. 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 Company, 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 Company as provided in the Certificate of Trust.
(f) 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.
22. Rights of Ownership.
All computer programs, systems and procedures employed or developed by
BISYS, or on behalf of BISYS by system providers or vendors used by BISYS, to
perform services required to be provided by BISYS under this Agreement are the
property of BISYS. All records and other data maintained hereunder, excepting
such computer programs, systems and procedures, are the exclusive property of
the Company. All such records and other data which is the property of the
Company shall be furnished to the Company, at the Company's expense, in
appropriate form as soon as practicable after termination of this Agreement for
any reason.
23. Prior Agreements
13
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 by this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed and
delivered this Agreement as of the day and year first above written.
BISYS Fund Services Ohio, Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Legacy Funds Group
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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SCHEDULE A
SERVICES
BISYS shall:
1. calculate contractual Company expenses and control all disbursements for
the Company, subject to review and approval of an officer of the Company or
other authorized person (designated on the list of authorized persons
approved by the Board), including administration of director and vendor
fees and compensation on behalf of the Company, and as appropriate and as
appropriate, compute the Company's yields, total return, expense ratios,
portfolio turnover rate and, if required, portfolio average dollar-weighted
maturity;
2. (i) coordinate, prepare and file with the SEC the annual update to the
Company's registration statement on Form N-1A, (ii) coordinate, prepare and
file with the SEC supplements to the Company's registration statement or,
as agreed upon by the parties hereto, review such supplements that are
prepared by counsel to the Company, (iii) review Notices of Annual or
Special Meetings of shareholders and proxy materials relating thereto that
are prepared by counsel to the Company, (iv) coordinate the solicitation
and tabulation of proxies in connection with meetings of shareholders, (v)
coordinate the printing and distribution of prospectuses, supplements and
proxy materials, (vi) maintain corporate records on behalf of the Company,
including, but not limited to, minute books, Declaration of Trust and
By-Laws, (vii) provide appropriate personnel to attend board meetings and
record the minutes of such meetings, and (viii) produce and distribute
materials for board meetings, including agendas, proposed resolutions, and
relevant sections of the board materials pertaining to the responsibilities
of the Company's administrator;
3. prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares of beneficial interest in the
Company as may be required in order to comply with Federal and state
securities laws) as may be necessary or desirable to register the shares of
beneficial interest in the Company ("Shares") with state securities
authorities, monitor the sale of Shares for compliance with state
securities laws, and file with the appropriate state securities authorities
the registration statements and reports for the Company and the Shares and
all amendments thereto, as may be necessary or convenient to register and
keep effective the registration of the Company and the Shares with state
securities authorities to enable the Company to make a continuous offering
of its Shares;
4. coordinate and prepare, with the assistance of the Adviser and the Funds'
officers, drafts of communications to shareholders of record of the Funds
("Shareholders"), including the annual report to Shareholders;
5. prepare the drafts of the semi-annual report for each of the Funds, and
file the certified final versions thereof on Form N-CSR, and file all
required notices pursuant to Rule 24f-2;
6. coordinate the printing and distribution of prospectuses, supplements,
proxy materials and reports to Shareholders, coordinate the solicitation
and tabulation of proxies in connection with the annual meeting of
Shareholders each year, if one is held;
7. administer contracts on behalf of the Company with, among others, the
Adviser, distributor, custodian, transfer agent and fund accountant;
8. supervise the Company's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
9. calculate performance data of the Funds for dissemination to up to six (6)
information services covering the investment company industry;
10. coordinate and supervise the preparation and filing of the Company's tax
returns;
11. assist with the layout and printing of prospectuses and assist with and
coordinate layout and printing of the Funds' semi-annual and annual reports
to Shareholders, prospectuses, prospectus supplements, and proxy
statements;
12. assist with the design, development, and operation of the Funds, including
new classes, investment objectives, policies and structure;
13. make available appropriate individuals to serve as officers of the Company,
upon designation as such by the Board, to serve in ministerial or
administrative capacities related to services provided by BISYS as
determined by the Board, or to serve in executive capacities subject to the
provisions of Schedule B to this Agreement and the BISYS policies referred
to in this Agreement;
14. advise the Company and the Board on matters concerning the Company, the
Funds and their affairs;
15. obtain, maintain and file fidelity bonds and directors and officers/errors
and omissions insurance policies for the Company at the expense of the
Company and Funds in accordance with the requirements of Rules 17g-1 and
17d-1(7) under the 1940 Act, to the extent such bonds and policies are
approved by the Board;
16. monitor and advise the Company and its Funds on their regulated investment
company status under the Internal Revenue Code of 1986, as amended;
17. perform necessary administrative services and functions of the Company and
each Fund to the extent administrative services and functions are not
provided to the Company or such Fund pursuant to the Company's or such
Fund's agreement with the Adviser, or the
Company's or such Fund's distribution agreement, custodian agreement,
transfer agent agreement or fund accounting agreement;
18. 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;
19. prepare the drafts of the semi-annual report for each of the Funds;
20. prepare and file the certified final versions thereof on Form N-CSR;
21. prepare and file the Funds' Form N-SAR, and file all required notices
pursuant to Rule 24f-2;
22. maintain corporate records on behalf of the Company, including, but not
limited to, minute books, Declaration of Trust or Certificate of
Incorporation, and By-Laws;
23. assist in developing 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, as are determinable
based upon the Fund's accounting records;
24. monitor services provided under Shareholder Service Plans adopted by the
Board and financial institutions that serve, or propose to serve, as
shareholder services agents thereunder ("Shareholder Service Agents");
25. coordinate the services to be rendered by Shareholder Service Agents
pursuant to Shareholder Service Agreements under Shareholder Service Plans,
and review the qualifications of Shareholder Service Agents to serve as
such under the relevant Shareholder Service Plan;
26. coordinate and assist in the Company's execution and delivery of
Shareholder Service Agreements;
27. report to the Board regarding amounts paid under Shareholder Service
Agreements and the nature of Services provided by the Shareholder Service
Agents thereunder, and maintain appropriate records in connection with the
foregoing;
28. provide assistance and guidance to the Company with respect to matters
governed by or related to regulatory requirements and developments
including: monitoring regulatory and legislative developments which may
effect the Company, and assisting in strategic planning in response
thereto;
29. assist the Company in responding to and providing documents for routine
regulatory examinations or investigations, and working closely with counsel
to the Company in
response to such routine or non-routine regulatory matter;
30. assist the Company in preparing for and administering Board meetings by (i)
coordinating Board book production and distribution, (ii) subject to review
and approval by the Company and its counsel, preparing Board agendas and
minutes, (iii) preparing the relevant sections of the Board materials
pertaining to the responsibilities of BISYS, (iv) assisting and
coordinating special materials related to annual contract approvals and
approval of rule 12b-1 plans and related matters, (v) provide appropriate
personnel to attend Board meetings and record the minutes of such meetings,
and produce and distribute materials for Board meetings, including relevant
sections of the Board materials pertaining to the responsibilities of
BISYS, and (vi) performing such other Board meeting functions as agreed by
the parties;
31. File holdings reports on Form N-Q as required at the end of the first and
third fiscal quarters of each year; and
32. Serve as the paying agent with respect to the custodial fees due to
Comerica Bank (the "Custodian") pursuant to the Custody Agreement dated
[April 1, 2002] between the Company and the Custodian (the "Custody
Agreement") and, as such, upon receipt in full of the compensation payable
to BISYS under the Fee Agreement referred to in Article 3, paragraph (a),
remit that portion of the compensation payable to BISYS which represents
the custodian fee payable to the Custodian under the Custody Agreement.
BISYS shall perform such other services for the Company that are mutually
agreed upon by the parties from time to time. Such services may include
performing internal audit examinations; mailing the annual and semi-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' out-of-pocket expenses.
SCHEDULE B
PROVISIONS APPLICABLE TO INDIVIDUALS
SERVING IN CERTAIN CAPACITIES
The provisions of this Schedule B apply only if BISYS makes available
appropriate individuals to serve as officers of the Company, upon designation as
such by the Board, to serve in ministerial capacities related to services
provided by BISYS as determined by the Board, or to serve in executive
capacities of the Company.
To assist the 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
Company, "▇▇▇▇▇▇▇▇-▇▇▇▇▇"), 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 Company and included in financial information
certified by Company officers ("Certifying Officers") on Form N-CSR, Form N-Q
and any other form required to be certified pursuant to ▇▇▇▇▇▇▇▇-▇▇▇▇▇
("Reports") are (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, which may be
disclosure controls and procedures provided by BISYS ("Fund DCPs"), and (b)
accumulated and communicated to the relevant Certifying Officers consistent with
the Fund DCPs.
If requested by Certifying Officers with respect to a fiscal period during
which BISYS serves or served as financial administrator, BISYS will provide a
sub-certification consistent with the requirements of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ pertaining
to BISYS' services. 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, the Adviser and each Fund's custodian; and (c)
assume that the Company has selected the appropriate accounting policies for the
Funds.
The Company shall assist and cooperate with BISYS (and shall cause its
officers, investment advisers and other service providers to assist and
cooperate with BISYS) to facilitate the delivery of information requested by
BISYS in connection with the preparation of Reports, including Fund financial
statements, so that BISYS may submit a draft Report to the Funds' Disclosure
Controls and Procedures Committee ("Fund DCP Committee") at least ten (10) days
prior to the date the relevant Report is to be filed. The relevant Certifying
Officers and the Chief Legal Officer of the Fund shall be deemed to constitute
the Fund DCP Committee in cases in which no other Fund DCP Committee has been
designated or is operative. In connection with its review and evaluations, the
Fund DCP Committee shall establish a schedule to ensure that all required
disclosures in Reports and in the financial statements for the Fund are
identified and prepared in a timeframe sufficient to
allow review by the Fund DCP Committee. At the request of the Company or its
Certifying Officers, BISYS shall provide reasonable administrative assistance to
the Company in connection with obtaining service provider sub-certifications and
SAS-70 reports on internal controls, and in preparing summaries of issues raised
in such documents.
The Company recognizes the Company's obligation to comply with
▇▇▇▇▇▇▇▇-▇▇▇▇▇. Without limitation of the foregoing, the Company shall maintain
responsibility for, and shall support and facilitate the role of each Certifying
Officer, an AML Compliance Officer (both parties hereby acknowledge that same is
considered a Certifying Officer) and the Fund DCP Committee in, designing and
maintaining the Fund DCPs in accordance with applicable laws, including (a)
ensuring that the Fund DCP Committee and/or Certifying Officers obtain and
review sub-certifications and reports on internal controls from the Fund's
investment adviser(s) and other service providers, if any, sufficiently in
advance of the date upon which the relevant financial statements must be
finalized by BISYS (in order to print, distribute and/or file the same), and (b)
evaluating the effectiveness of the design and operation of the Fund DCP, with
(at the Company's election) the participation of the Certifying Officers, within
the requisite timeframe prior to the filing of each Report.
The Company agrees and acknowledges that BISYS Policies are applicable to
the service of any BISYS employee as a Certifying Officer, an AML Compliance
Officer (both parties hereby acknowledging that same is considered a Certifying
Officer) or as Chief Legal Officer of the Company (an "Employee/Executive
Officer"), and that to the extent this service is rendered by BISYS it is
limited, in each case, to providing an Employee/Executive Officer who, in the
exercise of his or her duties to the Company, shall act in good faith and in a
manner reasonably believed by him or her to be in the best interests of the
Company. BISYS shall select, and may replace, the specific employee that it
makes available to serve in the designated capacity as an Employee/Executive
Officer, in BISYS' reasonable discretion, taking into account such person's
responsibilities concerning, and familiarity with, the Company's operations;
provided, however, that no BISYS employee may serve as an Employee/Executive
Officer without the approval of the Board.
BISYS' provision of each Employee/Executive Officer is also subject to, and
conditioned upon, the following:
(a) The Fund DCPs shall contain (or the Company and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification process,
and the parties shall comply with such procedures in all material respects.
Among other things, the procedures shall provide as follows:
(i) The Company shall establish and maintain a Fund DCP Committee comprised
of persons including (at a minimum) the Company's Principal Executive Officer,
Chief Financial Officer and Chief Legal Officer and such other individuals as
may be reasonably necessary or appropriate for the Fund DCP Committee to ensure
the cooperation of, and to oversee, each of the Company's agents that records,
processes, summarizes, or reports information contained in
Fund Reports (or other information from which such information is derived),
including the investment adviser and custodian (each, a "Service Provider"). In
connection therewith, the Fund DCP Committee shall assist the Certifying
Officers by requiring that sub-certifications acceptable to the Certifying
Officers be provided by Service Providers.
(ii) The Fund DCP Committee shall meet within 10 days before the filing
date of each Report to review the accuracy and completeness of the relevant
Report, and shall record its considerations and conclusions in a written
memorandum sufficient to support conclusions pertaining to Fund DCPs as required
by the instructions to Form N-CSR or Form N-Q. In conducting its review and
evaluations, the Fund DCP Committee shall:
(A) establish a schedule to ensure that all required disclosures in
Form N-CSR, including the financial statements, for the Fund are identified and
prepared in a timeframe sufficient to allow review;
(B) review SAS 70 Reports pertaining to Service Providers, if
applicable, or in the absence of any such reports, consider the adequacy of a
sub-certification of the Service Provider. In cases where the SAS 70 report is
dated more than 90 days prior to the issuance of a Report, the DCP Committee
shall request a written representation from the Service Provider regarding the
continued application and effectiveness of internal controls described in the
report, or descriptions of any changes in internal control structure, as of the
date of the bring-down certification;
(C) consider whether there are any significant deficiencies in the
design or operation of the Fund DCPs that could adversely affect a Fund's
ability to record, process, summarize, and report financial data, and in the
event that any such deficiencies are identified, disclose them to the Fund's
Certifying Officers, the Fund's audit committee and its auditors; consider
whether, to the knowledge of each member of the Fund DCP Committee, there has
been or may have been any fraud, whether or not material, and in the event that
any such occurrence is identified, ensure that this has been disclosed to the
Certifying Officers, the AML Compliance Officer and Chief Legal Officer
(collectively, the "Executive Officers"), so that the Executive Officers may
inform the Fund's audit committee and its auditors; and
(D) determine whether there were significant changes in internal
controls or in other factors that could significantly affect internal controls
subsequent to the date of the most recent evaluation of internal controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses, and if there were any, take all steps necessary so that
such changes and corrective actions are reflected in the Report.
(b) The Company's governing documents (such as its Agreement and Declaration of
Trust or Certificate and Incorporation and By-Laws) and/or resolutions of its
Board shall contain mandatory indemnification provisions that are applicable to
each Employee/Executive Officer, and which are intended to have the effect of
fully indemnifying him or her and holding him or her harmless with respect to
any claims, liabilities and costs arising out of or relating to his or her
service as an
Employee/Executive Officer in good faith in a manner reasonably believed to be
in the best interests of the Company, except to the extent he or she would
otherwise be liable to the Company by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his office, within the meaning of Section 17(h) of the 1940 Act.
(c) The Company shall provide coverage to each Employee/Executive Officer under
its directors and officers liability policy that is appropriate to the
Employee/Executive Officer's role and title, and that is consistent with
coverage applicable to other executive management-level officers;
(d) An Employee/Executive Officer that serves as a Certifying Officer shall have
the full discretion to decline to certify a particular Report that fails to meet
the standards set forth in the Certification, to report matters involving fraud
or other failure to meet the standards of applicable law to the audit committee
of the Board, or in appropriate circumstances, to resign from his or her
position, in the event that he or she reasonably determines that there has been
or is likely to be (1) a material deviation from the BISYS Policies, (2) a
violation of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ or other applicable laws, or (3) a material
deviation by the Company from the terms of this Agreement governing the services
of such Certifying Officer that is not caused by such Certifying Officer or
BISYS.
(e) Each Employee/Executive Officer that serves as a Certifying Officer may, and
the Company shall, promptly notify BISYS of any issue, matter or event that
would be reasonably likely to result in any claim by the Fund, the Fund's
shareholders or any third party which involves an allegation that any Report
failed to meet the standards of applicable laws or that any of the Company's
Certifying Officers failed to exercise their obligations to the Fund in a manner
consistent with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and other applicable laws.
(f) Notwithstanding any provision of this Agreement that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that BISYS cannot ensure that the Company complies with
▇▇▇▇▇▇▇▇-▇▇▇▇▇, and (b) if a BISYS employee serves as an Executive Officer of
the Company, as long as such Executive Officer acts in good faith and in a
manner reasonably believed to be in the best interests of the Company (and would
not otherwise be liable to the Company by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office), the Company shall indemnify the Executive Officer
and BISYS and hold the Executive Officer and BISYS harmless from any loss,
liability, expenses (including reasonable attorneys fees) and damages incurred
by them arising out of or resulting from the service of such Employee/Executive
Officer as a Certifying Officer or other executive officer of the Company.