Exhibit 23(h)(2)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of the 13th day of May, 2002, by and between
Legacy Funds Group, a Massachusetts business trust (the "Company"), having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
BISYS FUND SERVICES LIMITED PARTNERSHIP (the "Administrator"), a limited
partnership organized under the laws of the State of Ohio and having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest ("Shares");
and
WHEREAS, the Company desires the Administrator to provide, and the
Administrator is willing to provide, management and administrative services to
each series of the Company, all as now or hereafter may be established from time
to time ("Portfolios"), on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator. The Company hereby retains the
Administrator to act as the administrator of the Portfolios and to furnish the
Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and shall
not be deemed an agent of the Company.
ARTICLE 2. Administrative Services. The Administrator shall perform or
supervise the performance by others of administrative services in connection
with the operations of the Portfolios, and, on behalf of the Company, will
investigate, assist in the selection of and conduct relations with custodians,
depositories, accountants, legal counsel, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and persons in any other capacity deemed
to be necessary or desirable for the Portfolios' operations. The Administrator
shall provide the Board of Trustees of the Company (hereafter referred to as the
"Trustees") with such reports regarding investment performance as they may
reasonably request but shall have no responsibility for supervising the
performance by any investment adviser or sub-adviser of its responsibilities.
The Administrator shall provide the Company with regulatory reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for Shareholders' and Trustees' meetings) for handling the
affairs of the Portfolios and such other services as the Administrator shall,
from time to time, determine to be necessary to perform its obligations under
this Agreement. In addition, at the request of the Trustees, the Administrator
shall make reports to the Company's Trustees concerning the performance of its
obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Company expenses and control all
disbursements for the Company, and as appropriate, compute the
Company's yields, total return, expense ratios, portfolio turnover
rate and, if required, portfolio average dollar-weighted maturity;
(b) (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;
(c) prepare such reports, applications and documents (including
reports regarding the sale and redemption of Shares as may be
required in order to comply with Federal and state securities law)
as may be necessary or desirable to register the Company's Shares
with state securities authorities, monitor the sale of Company
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 Company's Shares and all
amendments thereto, as may be necessary or convenient to register
and keep effective the Company and the Company's Shares with state
securities authorities to enable the Company to make a continuous
offering of its Shares;
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(d) develop and prepare, with the assistance of the Company's
investment adviser, communications to Shareholders, including the
annual report to Shareholders, coordinate the mailing of
prospectuses, notices, proxy statements, proxies and other reports
to Company Shareholders, and supervise and facilitate the proxy
solicitation process for all shareholder meetings, including the
tabulation of shareholder votes;
(e) administer contracts on behalf of the Company with, among
others, the Company's investment adviser, distributor, custodian,
transfer agent and fund accountant;
(f) supervise the Company's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for dissemination
to information services covering the investment company industry;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
(i) examine and review the operations and performance of the various
organizations providing services to the Company or any Portfolio of
the Company, including, without limitation, the Company's investment
adviser, distributor, custodian, fund accountant, transfer agent,
outside legal counsel and independent public accountants, and at the
request of the Trustees, report to the Board on the performance of
organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of
the Company's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives, policies
and structure;
(l) provide individuals reasonably acceptable to the Company's
Trustees to serve as officers of the Company, who will be
responsible for the management of certain of the Company's affairs
as determined by the Company's Trustees;
(m) advise the Company and its Trustees on matters concerning the
Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company in
accordance with the requirements of Rules
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17g-1 and 17d-1(7) under the 1940 Act as such bonds and policies are
approved by the Company's Trustees;
(o) monitor and advise the Company and its Portfolios on their
registered investment company status under the Internal Revenue Code
of 1986, as amended;
(p) perform all administrative services and functions of the Company
and each Portfolio to the extent administrative services and
functions are not provided to the Company or such Portfolio pursuant
to the Company's or such Portfolio's investment advisory agreement,
distribution agreement, custodian agreement, transfer agent
agreement and fund accounting agreement;
(q) furnish advice and recommendations with respect to other aspects
of the business and affairs of the Portfolios as the Company and the
Administrator shall determine desirable; and
(r) prepare and file with the SEC the semi-annual report for the
Company on Form N-SAR and all required notices pursuant to Rule
24f-2.
The Administrator 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 reports of
the Portfolios; preparing an annual list of Shareholders; and mailing notices of
Shareholders' meetings, proxies and proxy statements, for all of which the
Company will pay the Administrator's out-of-pocket expenses.
ARTICLE 3. Allocation of Charges and Expenses.
(A) The Administrator. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. The Administrator shall also provide the items
which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Company as well as all Trustees of the
Company who are affiliated persons of the Administrator or any affiliated person
of the Administrator; provided, however, that unless otherwise specifically
provided, the Administrator shall not be obligated to pay the compensation of
any employee of the Company retained by the Trustees of the Company to perform
services on behalf of the Company.
(B) The Company. The Company assumes and shall pay or cause to be paid all
other expenses of the Company not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the
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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 the Administrator or the Investment Adviser to the Company
or any affiliated corporation of the Administrator or the Investment Adviser,
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers to the
Company.
ARTICLE 4. Compensation of the Administrator.
(A) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator compensation at an annual
rate specified in the Omnibus Fee Agreement by and among the Company, BISYS Fund
Services Ohio, Inc. and the Administrator dated as of May 13, 2002, (the "Fee
Agreement"). In addition to paying the Administrator the fees set forth in the
Fee Agreement, the Company shall also reimburse the Administrator for all of its
reasonable out-of-pocket expenses, including, but not limited to, travel and
lodging expenses incurred by officers and employees of the Administrator in
connection with attendance at (i) Board meetings and (ii) any other meetings for
which such attendance is requested or agreed upon by the parties.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
(B) Survival of Compensation Rights. All rights of compensation under this
Agreement for services performed as of the termination date shall survive the
termination of this Agreement.
ARTICLE 5. Limitation of Liability of the Administrator. The duties of the
Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against the Administrator
hereunder. The Administrator 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 hereunder, 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 hereunder, except as may otherwise be
provided under provisions of applicable law which cannot be waived or modified
hereby. (As used in this Article 5, the term "Administrator" shall include
partners, officers, employees and other agents of the Administrator as well as
the Administrator itself.)
So long as the Administrator acts in good faith and with due diligence and
without negligence, reckless disregard or willful misfeasance, the Company
assumes full responsibility and shall indemnify the Administrator and hold it
harmless from and against any and all actions,
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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 or indirectly out of the Administrator's actions taken or
nonactions with respect to the performance of services hereunder. The indemnity
and defense provisions set forth herein shall indefinitely survive the
termination of this Agreement.
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 the
Administrator 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 Administrator 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.
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 the
Company and satisfactory to the Administrator, whose approval shall not be
unreasonably withheld. In the event that the Company elects to assume the
defense of any suit and retain counsel, the Administrator shall bear the fees
and expenses of any additional counsel retained by it. If the Company does not
elect to assume the defense of a suit, it will reimburse the Administrator for
the reasonable fees and expenses of any counsel retained by the Administrator.
The Administrator may apply to the Company at any time for instructions
and may consult counsel for the Company or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Administrator's duties, and the Administrator shall not be liable or accountable
for any action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Company until receipt of written notice thereof from the Company.
ARTICLE 6. Activities of the Administrator. The services of the
Administrator rendered to the Company are not to be deemed to be exclusive. The
Administrator 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 Company are or may be or become
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interested in the Administrator, as officers, employees or otherwise and that
partners, officers and employees of the Administrator and its counsel are or may
be or become similarly interested in the Company, and that the Administrator may
be or become interested in the Company as a Shareholder or otherwise.
ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall be
as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
the Administrator may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder. The
Administrator shall not, however, be relieved of any of its obligations under
this Agreement by the appointment of such subcontractor and provided further,
that, with the exception of sub-administration arrangement that are specifically
approved by the Trustees, the Administrator shall be responsible, to the extent
provided in Article 5 hereof, for all acts of any subcontractor as if such acts
were its own. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
ARTICLE 9. Amendments. This Agreement may be amended by the parties hereto
only if such amendment is specifically approved (i) by the vote of a majority of
the Trustees of the Company, and (ii) by the vote of a majority of the Trustees
of the Company who are not parties to this Agreement or interested persons of
any such party, cast in person at a Trustees meeting called for the purpose of
voting on such approval.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and the
Administrator 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.
ARTICLE 10. Certain 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 Company shall be prepared and maintained at the expense of the
Administrator, but shall be the property of the Company and will be made
available to or surrendered promptly to the Company on request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records to any person in any case where
it is advised by its counsel that it may be held liable for failure to do so,
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unless (in cases involving potential exposure only to civil liability) the
Company has agreed to indemnify the Administrator against such liability.
ARTICLE 11. Definitions of Certain Terms. 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 Securities and Exchange
Commission.
ARTICLE 12. 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, addressed by the party giving notice to the other party
at the following address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, along with a
copy to First Financial Capital Advisors LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as such party may from time
to time specify in writing to the other party pursuant to this Section.
ARTICLE 13. Governing Law and Matters Relating to the Company as a
Massachusetts Business Trust. 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.
ARTICLE 14. Multiple Originals. 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.
ARTICLE 15. Privacy. Nonpublic personal financial information relating to
consumers or customers of the Company provided by, or at the direction of the
Company to Administrator, or collected or retained by Administrator to perform
its duties as administrator of the Funds shall be considered confidential
information. Administrator shall not give, sell or in any way transfer such
confidential information to any person or entity, other than affiliates of
Administrator except at the direction of the Company or as required or permitted
by law. Administrator 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.
The Company represents to Administrator that it has adopted a Statement of its
privacy policies and practices as
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required by Securities and Exchange Commission Regulation S-P and agrees to
provide Administrator with a copy of that statement annually.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
LEGACY FUNDS GROUP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Title: President
BISYS FUND SERVICES LIMITED
PARTNERSHIP
By: BISYS Fund Services, Inc.,
Its General Partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
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SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
BETWEEN
LEGACY FUNDS GROUP
AND
BISYS FUND SERVICES LIMITED PARTNERSHIP
PORTFOLIOS: This Agreement shall apply to all Portfolios of Legacy Funds Group,
either now or hereafter created (individually, the "Portfolio", and
collectively, the "Portfolios"). The current Portfolios of the
Company are set forth below:
The Multi-Cap Core Equity Fund
The Core Bond Fund
The Federal Money Fund
TERM: Pursuant to Article 7, the term of this Agreement shall commence
on May 13, 2002 and shall remain in effect, unless earlier
terminated by either party hereto as provided hereunder, through
May 13, 2005 ("Initial Term"). Thereafter, unless otherwise
terminated as provided herein, this Agreement shall be renewed
automatically for successive one-year periods ("Rollover
Periods"). This Agreement may be terminated without penalty (i)
by provision of a notice of nonrenewal in the manner set forth
below, (ii) by mutual agreement of the parties or (iii) for
"cause," as defined below, upon the provision of sixty (60) days
advance written notice by the party alleging cause. Written
notice of nonrenewal must be provided at least sixty (60) days
prior to the end of the Initial Term or any Rollover Period, as
the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30)
days following written notice of such breach from the non-breaching
party; (b) a final, unappealable judicial, regulatory or
administrative ruling or order in which the party to be terminated
has been found guilty of criminal or unethical behavior in the
conduct of its business; (c) financial difficulties on the part of
the party to be terminated which are evidenced by the authorization
or commencement of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or involuntary case under
Title 11 of the United States Code, as from time to time is in
effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of
debtors or to the modification or alteration of the rights of
creditors; (d) any failure on the part of the Company to collect
from the investment adviser any payment or reimbursement that is due
and payable by the investment adviser to the Company (including an
amount due the Company that directly or indirectly represents
amounts payable to the Administrator in its capacity as fund
administrator to the Company) within sixty (60) days following
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the due date; or (e) any failure on the part of the Company to pay
an amount that is due and payable to the Administrator or any of its
affiliates under any other agreement to which the Company is a party
within sixty (60) days following the due date. For purposes of this
definition of "cause," a material breach shall include, but not be
limited to, any failure on the part of the Company to pay fees or
reimburse expenses due and payable to the Administrator pursuant to
the Fee Agreement and Article 4(A) hereunder within sixty (60) days
following the due date.
Notwithstanding the foregoing, after such termination for so long as
the Administrator, with the written consent of the Company, 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 the Administrator and unpaid by the Company upon
such termination shall be immediately due and payable upon and
notwithstanding such termination. The Administrator shall be
entitled to collect from the Company, in addition to the
compensation described in the Fee Agreement, the amount of all of
the Administrator's cash disbursements for services in connection
with the Administrator's activities in effecting such termination,
including without limitation, the delivery to the Company and/or its
designees of the Company's property, records, instruments and
documents.
If, for any reason other than nonrenewal, mutual agreement of the
parties or "cause," as defined above, the Administrator is replaced
as administrator, or if a third party is added to perform all or a
part of the services provided by the Administrator under this
Agreement (excluding any sub-administrator appointed by the
Administrator as provided in Article 7 hereof), then the Company
shall make a one-time cash payment, in consideration of the fee
structure and services to be provided under this Agreement, and not
as a penalty, to the Administrator equal to the balance due the
Administrator 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 Company's
assets for the twelve months prior to the date the Administrator is
replaced or a third party is added.
In the event the Portfolios are merged into another legal entity in
part or in whole pursuant to any form of business reorganization or
are 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 the Administrator is not
retained to provide administration 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 the
Administrator is replaced or a third party is added.
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The parties further acknowledge and agree that, in the event the
Administrator is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by the
Administrator would be extremely difficult, and (ii) the liquidated
damages provision contained herein is intended to adequately
compensate the Administrator for damages incurred and is not
intended to constitute any form of penalty.
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