EXHIBIT (h)(iii)
SUB-ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 1st day of November, 2004, by and
between FIFTH THIRD BANK ("Fifth Third"), an Ohio banking corporation, and BISYS
FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation.
WHEREAS, Fifth Third has entered into an Administration Agreement,
dated October 29, 2001 (the "Administration Agreement"), with Fifth Third Funds
(the "Company"), a Massachusetts business trust registered with the Securities
and Exchange Commission (the "Commission"), concerning the provision of various
services, including but not limited to administration services, for the various
investment portfolios of the Company, all as now or hereafter may be established
from time to time (individually referred to herein as a "Fund" and collectively
as the "Funds") as set forth on Schedule A;
WHEREAS, Fifth Third and BISYS entered into a Sub-Administration
Agreement dated October 29, 2001 under which BISYS Fund Services Limited
Partnership (an affiliate of BISYS) currently serves as sub-administrator of the
Funds (the "2001 Agreement");
WHEREAS, the parties desire that BISYS replace BISYS Fund Services
Limited Partnership as sub-administrator, and in that capacity assist Fifth
Third in performing the sub-administration services for the Funds that are
currently being performed by BISYS Fund Services Limited Partnership; and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter contained, the Administrator and BISYS hereby agree as follows:
1. Retention of BISYS
Fifth Third hereby retains BISYS to act as sub-administrator of the
Funds. BISYS and Fifth Third hereby agree that BISYS will perform the services
upon the terms set forth in this Agreement and the Schedules hereto. In
performing its duties under this Agreement, BISYS will act in conformity with
all laws and regulations directly applicable to BISYS in connection with its
performance of services under this Agreement.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, except as otherwise expressly provided or authorized, shall have
no authority to act for or represent Fifth Third or the Funds in any way, and
shall not be deemed an agent of Fifth Third or any Funds. Notwithstanding the
foregoing, employees of BISYS or its affiliates may serve as officers of the
Funds and in such capacity may act as agents of the Funds, however, same shall
not be deemed to confer agency status on BISYS and the relationship of BISYS to
Fifth Third shall be that of an independent contractor.
2. Sub-Administration Services.
BISYS shall perform the sub-administration services set forth in
Schedule B. BISYS agrees to perform the services described herein in accordance
with the service standards set forth in Schedule C. BISYS shall provide Fifth
Third or the Board of Trustees of the Company (the "Board") 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. BISYS shall perform such other
administration services, and furnish such Reports, for Fifth Third and the Funds
that are mutually agreed upon by the parties from time to time, for which Fifth
Third will pay BISYS the amounts agreed upon between them.
BISYS may utilize agents in its performance of its services; provided,
however, that (i) the Board's approval shall be required to establish an
arrangement in which a party acts as sub- administrator ("Sub-Agent"); and (ii)
any agent (including any Sub-Agent) retained by BISYS shall be the agent of
BISYS and not the agent Of Fifth Third, and BISYS shall be fully responsible for
the acts of any such agent (or Sub-Agent) and shall not be relieved of any of
its responsibilities hereunder by the appointment of such agent (or Sub-Agent).
BISYS shall report to the Board at its regular meetings concerning all such
Sub-Agent relationships, particularly any Sub-Agents retained or terminated
during the relevant period. In the event that a Sub-Agent is retained by BISYS
at the request or instruction of the Company or Fifth Third, the foregoing
provisions of this paragraph shall not apply to the extent they are inconsistent
with any written agreement(s) entered into by the parties with respect to such
arrangement.
BISYS shall be responsible for, to the extent applicable, that a
Sub-Agent (other than one retained at the request or instruction of the Company
or Fifth Third) acts in conformity with all laws and regulations directly
applicable to it in connection with the performance of the services hereunder
that are being performed by such Sub-Agent pursuant to the arrangement between
BISYS and such Sub-Agent.
3. Allocation of Charges and Expenses.
BISYS shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
BISYS shall also provide all items which it is obligated to provide under this
Agreement, and shall pay all compensation, if any, of officers of the Company
who are affiliated persons of BISYS or any affiliated entity of BISYS; provided,
however, that unless otherwise specifically provided, BISYS shall not be
obligated to pay the compensation of any employee or agent of Fifth Third or the
Company (who is not a BISYS employee) retained by the Board to perform services
on behalf of Fifth Third or the Company.
Fifth Third (or the Company or the relevant Funds, as the case may be)
assumes and shall pay or cause to be paid all other expenses of Fifth Third and
the Funds that are not otherwise allocated herein, including, without
limitation, Fund organization costs, taxes, expenses for Fund 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 of beneficial
interest in the Funds ("Shares"), the cost 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 the trustees of the Funds
who are not affiliated persons of BISYS or any affiliate of BISYS, insurance,
interest, brokerage costs, litigation and other extraordinary or nonrecurring
expenses, and all fees and charges of investment advisers.
4. Compensation of the Sub-Administrator
(a) Fifth Third shall pay BISYS for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth in,
Schedule D hereto. If this Agreement becomes effective subsequent to the first
day of a month or terminates in accordance with its terms before the last day of
a month, BISYS' 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. In addition to the foregoing, Fifth Third shall
also reimburse (or cause the Funds to reimburse) BISYS for all of its customary
and reasonable out-of-pocket expenses, including, without limitation, the
expenses allocated to the Fifth Third (or the Company or the relevant Funds, as
the case may be) set forth in Section 3 above and BISYS' actual travel and
lodging expenses reasonably incurred by officers and employees of BISYS in
connection with attendance at (i) Board meetings and (ii) any other meetings for
which such attendance is requested by Fifth Third or agreed upon by the parties
and materials costs only of BISYS' production of Board materials; provided,
however, that BISYS shall give written notice (including via e-mail) to Fifth
Third of any out-of-pocket expenses not specifically referenced above and shall
seek prior approval from Fifth Third or the Board of Trustees of the Company of
any other out-of-packet expenses.
(b) If this Agreement becomes effective subsequent to the first day of
a month or terminates in accordance with its terms before the last day of a
month, BISYS' 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 on Schedule D. 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.
5. Term.
This Agreement shall continue in effect for a period of two years,
until October 31, 2006 (the "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 only (i) by provision of a written notice of nonrenewal at least
sixty (60) days prior to the end of the Initial Term or any Rollover Period, as
the case may be, (ii) by mutual agreement of the parties, (iii) for "cause," as
defined below, upon the provision of sixty (60) days advance written notice by
the party alleging cause or (iv) automatically in the event the Company
terminates the Administration Agreement.
For purposes of this Section 5, "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 finding or determination of fault or culpability on the part of the party
not alleging cause (the "Affected Party") or its affiliates following formal
proceedings against said Affected Party or its affiliates by the SEC, NASD, or
any federal or state regulatory body, which finding or determination relates to
or affects BISYS' obligations under this Agreement, if the party seeking
termination reasonably determines that such finding or determination, or the
facts on which such finding or determination are based, (i) has a material
likelihood of preventing or materially and adversely impacting BISYS'
performance of or ability to perform, its obligations under this Agreement or
(ii) involves criminal or unethical behavior in the conduct of the Affected
Party's performance of its obligations under this Agreement or pursuant to the
Administration Agreement, as the case may be; (c) a final, unappealable
judicial, regulatory or administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical behavior in the
conduct of its business; or (c) financial difficulties on the part of the party
to be terminated which 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.
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 Fifth Third, the provisions of this
Agreement, including without limitation the provisions dealing with compensation
and indemnification, shall continue in full force and effect. Fees and expenses,
including without limitation, travel and lodging expenses incurred by BISYS in
accordance with Sections 3 or 4 of this Agreement but unpaid by Fifth Third upon
such termination shall be immediately due and payable upon and notwithstanding
such termination. BISYS shall be entitled to collect from Fifth Third, in
addition to the fees and expenses provided in the Section 3 and 4 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 Fifth Third, its investment adviser and/or
other parties of Fifth Third's property, records, instruments and documents.
If, for any reason other than non-renewal, mutual agreement of the
parties or "Cause", as defined above, BISYS is replaced by Fifth Third or the
Company as sub-administrator, or if a third party is added to perform all or a
part of the services provided by BISYS under this Agreement (excluding any
Sub-Agent appointed by BISYS as provided in Section 2 hereof), then Fifth Third
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 lesser of fifty percent (50%) of (A) the balance due BISYS for the
next two years of the then-current term of this Agreement or (B) the balance due
BISYS for the remainder of the then-current term of this Agreement, assuming for
purposes of calculation of the payment that such balance shall be based upon the
average amount of the Company's assets for the twelve months prior to the date
BISYS is replaced or a third party is added. Notwithstanding the foregoing, it
is agreed that in the event the Company terminates the Administration Agreement
and Fifth Third is replaced as administrator for a period of two or more years,
and the reasons for termination are for legitimate reasons other than to effect
a termination of this Agreement, then BISYS shall not be entitled to receive the
one-time cash payment referenced
above, but shall be entitled to receive from Fifth Third any and all costs
expenses it incurs in winding-down the services provided (including, without
limitation, severance fees) and transitioning to the new service provider. Such
payment shall be made promptly upon demand by BISYS.
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 services consistent with this Agreement, including
the number of accounts subject to such services; provided, however, that this
provision shall not be construed to require a payment of liquidated damages in
circumstances where any Fund is merged, reorganized or liquidated, in whole or
in part, due to legitimate economic, legal, regulatory, or marketing reasons
(that do not include any attempt to remove BISYS as a sub-administrator or to
reduce the fees due to BISYS hereunder) and BISYS continues to provide
sub-administration services with respect to the resulting Fund and the assets
that had been held by the predecessor Fund, even if the number of accounts
diminishes due to such merger, reorganization or liquidation. 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.
The parties further acknowledge and agree that, in the event services
are terminated, BISYS is replaced, or a third party is added (other than a
Sub-Agent selected by BISYS), 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.
6. Standard of Care; Uncontrollable Events; Limitation of Liability.
BISYS shall use reasonable professional diligence in the performance of
services under this Agreement, but shall not be liable to Fifth Third for any
action taken or omitted by BISYS in the absence of bad faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties. The duties of BISYS shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against BISYS
hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement.
BISYS shall provide, upon Fifth Third's reasonable request, supplemental
information concerning the aspects of its disaster recovery and business
continuity plan that are relevant to the services provided hereunder.
Notwithstanding the foregoing or any other provision of this Agreement, BISYS
assumes no responsibility hereunder, and shall not be liable for, any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control. Events beyond BISYS' reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or other events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption.
BISYS shall provide Fifth Third, at such times as Fifth Third may
reasonably request, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL BISYS, ITS AFFILIATES OR ANY OF ITS
OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR
LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Legal Advice.
BISYS shall notify Fifth Third 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. Fifth Third shall make its counsel or counsel to the
Funds available to BISYS for such legal advice, and if reasonably required,
shall permit (such permission not to be unreasonably withheld, conditioned or
delayed) BISYS to seek the advice of other legal counsel, at Fifth Third's
reasonable cost and expense, unless relating to a matter involving BISYS'
willful misfeasance, bad faith, gross negligence or reckless disregard of BISYS'
responsibilities and duties hereunder. BISYS shall be entitled to rely and act
upon the advise of such legal counsel and shall not be liable in any event to
Fifth Third or any Fund or any shareholder or beneficial owner of the Funds for
any action reasonably taken pursuant to such advice.
8. Instructions/Certain Procedures, etc.
BISYS shall be protected in acting upon any document that it reasonably
believes to be genuine and to have been signed or presented by the proper person
or persons. BISYS will not be held to have notice of any change of authority of
any officers, employees or agents of Fifth Third or the Funds until receipt of
actual notice thereof from Fifth Third or unless BISYS otherwise has knowledge
that such information is not accurate.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the relevant then-current Prospectus and
Statement of Additional Information of the Funds, to the extent that such
services are described therein unless BISYS receives written instructions to the
contrary in a timely manner from Fifth Third or unless BISYS otherwise has
knowledge that such information is not accurate.
The parties hereto may amend any procedures adopted, approved or set
forth herein by written agreement as may be appropriate or practical under the
circumstances, and BISYS may reasonably assume that any special procedure which
has been approved by an executive officer of the Funds (other than an officer or
employee of BISYS or its affiliates) does not conflict with or violate any
requirements of the Company's Declaration of Trust, By-Laws or then-current
Prospectus.
9. Indemnification.
Fifth Third agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any claims, demands,
actions, suits, judgments, liabilities, losses, damages, costs, charges, counsel
fees and other expenses including reasonable investigation expenses
(collectively, "Losses") resulting directly and proximately from BISYS'
performance of services under this Agreement or based, if applicable, upon
BISYS' reasonable reliance on information, records, instructions or requests
pertaining to services hereunder, that are given or made to BISYS by Fifth
Third, the Funds, the investment adviser, or other authorized agents of the
Funds with which BISYS must interface in providing services; provided that this
indemnification shall not apply to actions or omissions of BISYS involving bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties.
BISYS shall indemnify, defend, and hold harmless Fifth Third, and its
directors, officers, agents and nominees from and against Losses resulting
directly and proximately from BISYS' willful misfeasance, bad faith or
negligence in the performance of, or the reckless disregard of, its duties or
obligations hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case a party may be
asked to indemnify or hold the other party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights hereunder
except to the extent the indemnifying party is materially prejudiced thereby. As
to any matter eligible for indemnification, an indemnified party shall act
reasonably and in accordance with good faith business judgment and shall not
effect any settlement or confess judgment without the consent of the
indemnifying party, which consent shall not be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the indemnified
party. In the event that the indemnifying party elects to assume the defense of
any suit and retain counsel, the indemnified party shall bear the fees and
expenses of any additional counsel retained by it. An indemnifying party shall
not effect any settlement without the consent of the indemnified party (which
shall not be withheld or delayed unreasonably by the indemnified party) unless
such settlement imposes no liability, responsibility or other obligation upon
the indemnified party and relieves it of all fault. If the indemnifying party
does not elect to assume the defense of suit, it will reimburse the indemnified
party for the reasonable fees and expenses of any counsel retained by the
indemnified party. The indemnity and defense provisions set forth herein shall
indefinitely survive the termination of this Agreement.
10. Record Retention and Confidentiality.
BISYS shall keep and maintain all books and records which are customary
or which are required to be kept in connection with BISYS' services pursuant to
applicable statutes, rules and regulations, including without limitation Rules
31a-l and 31a-2 under the Investment Company Act of 1940, as amended (the "1940
Act"). BISYS further agrees that all such books and records shall be the
property of the Company or Fifth Third and to make such books and records
available for inspection by the Company or Fifth Third at reasonable times or by
the Commission promptly.
BISYS shall otherwise keep confidential all books and records relating
to Fifth Third and its shareholders, except when (i) disclosure is required by
law, (ii) BISYS is advised by counsel that it may incur liability for failure to
make a disclosure, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, (iv) BISYS is requested to make a
disclosure by a shareholder or shareholder's agent with respect to information
concerning an account as to which such shareholder has either a legal or
beneficial interest and a legal right to such information at such time
consistent with the Fund's Declaration of Trust, Prospectus and applicable law,
or (v) as requested or authorized by Fifth Third or the Company (including
pursuant to its policies and procedures). BISYS shall provide Fifth Third with
reasonable advance notice of disclosure pursuant to items (i) - (iii) of the
previous sentence, to the extent practicable.
With respect to any services that BISYS performs jointly with Fifth
Third, BISYS and Fifth Third shall agree in advance as to the scope of the
specific services to be provided by each party; the commencement date (and, if
applicable, the termination date) for rendering such services; and the location
(i.e. whether at the offices of the Administrator or BISYS) where the books and
records related thereto shall be maintained.
11. Return of Records
BISYS may at its option at any time, and shall promptly, upon Fifth
Third's demand, turn over to Fifth Third and cease to retain BISYS' files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the performance of its services or for
its legal protection if not so turned over to Fifth Third, such documents and
records shall be retained by BISYS for six (6) years from the year of creation.
At the end of such six-year period, such records and documents shall be turned
over to Fifth Third unless Fifth Third authorizes in writing the destruction of
such records and documents.
12. Representations and Warranties of Fifth Third.
Fifth Third represents and warrants to BISYS that:
(a) Fifth Third is a corporation duly incorporated and
validly existing under the laws of Ohio, and Fifth
Third has full capacity and authority to enter into
this agreement and to carry out its obligations under
the Administration Agreement and hereunder with
respect to the Company
(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;
(d) This Agreement has been duly authorized by Fifth
Third and the Company and, when executed and
delivered by Fifth Third, will constitute a legal,
valid and binding obligation of Fifth Third,
enforceable against Fifth Third 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; and
(e) Fifth Third represents and warrants that it has
presented this Agreement to, together with any
information requested by, the Board of Trustees of
the Company, and the Board of Trustees of the Company
has approved this Agreement. Fifth Third shall
provide BISYS with copies of the resolutions
evidencing such approval prior to the effective date
of this Agreement.
13. Representations arid Warranties of BISYS.
BISYS represents and warrants to Fifth Third that:
(a) It is a corporation duly incorporated and validly
existing under the laws of the state of Ohio, 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
BISYS' 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 BISYS and,
when executed and delivered by BISYS, will constitute
a legal, valid and binding obligation of BISYS,
enforceable against BISYS in accordance with its
terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general
application affecting the right and remedies of
creditors and secured parties;
(g) BISYS will cooperate in all material respects with
the Company's disclosure controls and procedures as
they relate to the services provided by B1SYS
hereunder, provided that BISYS is given an
opportunity to review and approve in advance such
disclosure controls and procedures and any changes
thereto;
(h) To the extent reasonably practicable, legally
permissible, and when appropriate and able to be
disclosed publicly, BISYS will give notice to Fifth
Third of any regulatory inquiry or litigation
specifically involving BISYS' provision of services
hereunder to Fifth Third, if the outcome of such
inquiry or litigation could reasonably be expected to
have an adverse effect on the services provided by
BISYS hereunder;
(i) It will notify Fifth Third in the event BISYS
switches from the core Investar and Investar 1 system
platforms to other system platforms; and
(j) It shall, upon reasonable request by Fifth Third,
furnish Fifth Third with a copy of that portion of
BISYS' SAS 70 relevant to the particular services
provided by BISYS under this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT IMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
14. 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 Fifth Third, BISYS shall provide
evidence that coverage is in place. BISYS shall notify Fifth Third 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
Fifth Third 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 Fifth Third 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.
15. Information to be Furnished by Fifth Third and the Company.
Fifth Third has furnished to BISYS the following, as amended and
current as of the Effective Date and will deliver all future amendments thereto:
(a) A copy of the Declaration of Trust of the Company and
any amendments thereto;
(b) A copy of the Company's By-laws and any amendments
thereto;
(c) A copy of the resolutions of the Board regarding (i)
approval of this Agreement and authorization for
Fifth Third to instruct BISYS hereunder, and (ii)
authorization of BISYS to act as sub-administrator
for Fifth Third;
(d) A certified list of all Officers of the Funds, and
any other persons (who may be associated with Fifth
Third or its investment advisor), together with
specimen signatures of those officers arid other
persons who (except as otherwise provided herein to
the contrary) shall be authorized to instruct BISYS
in all matters;
(e) 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-lA as filed with the
Commission relating to the Shares and any further
amendment thereto;
(f) Notification of registration of the Company under the
1940 Act on Form N-8A as filed with the Commission;
and
(g) 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").
16. Information Furnished by BISYS.
BISYS has furnished to Fifth Third evidence of the following:
(a) Approval of this Agreement by BISYS, and
authorization of a specified officer of BISYS to
execute and deliver this Agreement; and
(b) Authorization of BISYS to act as Sub-Administrator
for the Funds.
17. Compliance with Laws
Except for information which is the obligation of BISYS as set forth in
Section 10 hereof and except as provided in the services listed in the schedules
hereto which call for information to be provided by BISYS for inclusion in the
Prospectus, Fifth Third assumes full responsibility for the preparation,
contents, and distribution of each Prospectus of the Funds 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. Subject to any obligations herein with respect
to services related to "blue sky" filings, BISYS shall have no obligation to
take cognizance hereunder of laws relating to the sale of Shares. Fifth Third
represents and warrants
that all Shares of Fifth Third that are offered to the public are covered by an
effective registration statement under the 1933 Act and the 1940 Act.
18. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to Fifth Third, to ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, 14 Floor, Cincinnati, Ohio 45263, Attn: ▇▇▇▇ ▇▇▇▇; and if to BISYS,
to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; Attn: President, or at such
other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
19. Assignment.
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 19 shall not limit or in any way affect
BISYS' right to appoint a Sub-Agent pursuant to Section 2 hereof. This Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
20. Governing Law.
This Agreement shall be governed by and provisions 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.
21. Activities of BISYS.
The services of BISYS rendered to Fifth Third hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of Fifth Third and/or the Company are or may be or
become interested in BISYS, as officers, employees or otherwise, and that
partners, officers and employees of BISYS are or may be or become similarly
interested in Fifth Third, and that BISYS may he or become interested in Fifth
Third as a shareholder or otherwise.
22. Privacy.
Nonpublic personal financial information relating to consumers or
customers of Fifth Third provided by, or at the direction of Fifth Third to
BISYS, or collected or retained by BISYS in the course of performing its duties
as sub-administrator, shall be considered confidential information. BISYS shall
not give, sell or in any way transfer such confidential information to any
person or entity, other than affiliates of BISYS involved in servicing the Funds
except at the direction of Fifth Third or the Funds or as required or permitted
by law. BISYS represents, warrants and agrees that it has in place and will
maintain physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of records and information relating to consumers
or customers of the Funds. Fifth Third represents to BISYS that
the Company has adopted a Statement of its privacy policies and practices as
required by the Commission's Regulation S-P. has provided a copy to BISYS and
agrees to continue to provide BISYS with a copy of that statement annually.
BISYS represents that it will comply with the intent and spirit of the Trust's
privacy policies and applicable privacy laws to the extent that same are
applicable to the services rendered by BISYS hereunder.
23. Access to be Provided.
BISYS shall, grant reasonable access during normal business hours to
each of Fifth Third, the Trust, its independent auditors (but no more frequently
than four times per year), and regulators having jurisdiction over the Trust, to
the books and records maintained by BISYS as the same relates to the services
performed hereunder on behalf of the Trust. Records may be edited or redacted to
maintain confidentiality of materials related to other clients of BISYS.
24. 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.
(d) No amendment to this Agreement shall be valid unless
made in writing and executed by both parties hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
FIFTH THIRD BANK
By: /s/ ▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
DATED: NOVEMBER 1, 204
AMENDED: SEPTEMBER 29, 2005
FORM OF
SCHEDULE A
TO THE SUB-ADMINISTRATION ACREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
FUNDS
Institutional Funds
Fifth Third Institutional Money Market Fund Fifth Third U.S. Treasury Money Market Fund
Fifth Third Institutional Government Money Fifth Third Equity Index Fund
Market Fund Fifth Third LifeModel Moderately Aggressive Fund
Fifth Third LifeModel Aggressive Fund Fifth Third LifeModel Conservative Fund
Fifth Third LifeModel Moderate Fund
Fifth Third LifeModel Moderately
Conservative Fund
Retail Funds
Fifth Third International Equity Fund Fifth Third Small Cap Growth Fund
Fifth Third Micro Cap Value Fund Fifth Third Mid Cap Growth Fund
Fifth Third Technology Fund Fifth Third Dividend Growth Fund
Fifth Third Quality Growth Fund Fifth Third Small Cap Value Fund
Fifth Third Large Cap Core Fund Fifth Third Multi Cap Value Fund
Fifth Third Disciplined Large Cap Value Fund Fifth Third Balanced Fund
Fifth Third Strategic Income Fund Fifth Third Michigan Municipal Bond Fund
Fifth Third Ohio Municipal Bond Fund Fifth Third Municipal Bond Fund
Fifth Third Bond Fund Fifth Third Intermediate Municipal Bond Fund
Fifth Third Intermediate Bond Fund Fifth Third Short Term Bond Fund
Fifth Third U.S. Government Bond Fund Fifth Third Prime Money Market Fund
Fifth Third Government Money Market Fund Fifth Third Michigan Municipal Money Market Fund
Fifth Third Municipal Money Market Fund Fifth Third High Yield Bond Fund
SCHEDULE B
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
SERVICES
BISYS, the Sub-Administrator, will perform those services next to which an "x"
appears in the table below in the "BISYS" column. Certain services will be
performed jointly by BISYS and Fifth Third (also known as "5/3"), the
Administrator, as indicated in the table below.
------------- ----- ------------------------------------------------------------
BISYS 5/3 ADMINISTRATION
------------- ----- ------------------------------------------------------------
X X 1. Maintain and manage annual regulatory filing calendar.
------------- ----- ------------------------------------------------------------
X 2. Manage the process of printing and distributing
prospectuses and prospectus supplements. This includes, but
is not limited to, information regarding quantities and
layout, price negotiation, invoice control and management of
the mailing process.
------------- ----- ------------------------------------------------------------
X 3. Manage the process of printing and distributing proxy
materials. This includes, but is not limited to, information
regarding quantities, compilation of shareholder data, price
negotiation and management of the mailing process.
------------- ----- ------------------------------------------------------------
X 4. Prepare for and conduct shareholder meetings. This
includes, but is not limited to, solicitation of
shareholders, preparation of scripts, oversight of the
tabulation of votes and preparation of reports that reflect
voting results.
------------- ----- ------------------------------------------------------------
X 5. Prepare and file Form N24-F2.
------------- ----- ------------------------------------------------------------
X 6. Obtain tax identification numbers from the IRS for each
Fund portfolio.
------------- ----- ------------------------------------------------------------
X 7. Assist Fund's Independent Accountants with 17f-2 audit
process.
------------- ----- ------------------------------------------------------------
X X 8. Assist Fund in obtaining Fund ratings from NRSROs and the
NAIC.
------------- ----- ------------------------------------------------------------
X 9. Obtain Fund CUSIPs.
------------- ----- ------------------------------------------------------------
X 10. Assist in the completion of trustee/officer
questionnaires.
------------- ----- ------------------------------------------------------------
X X 11. Assist the Fund in the preparation of appropriate
documentation and records relating to the contribution of
seed money capital.
------------- ----- ------------------------------------------------------------
X X 12. Maintain books and records on behalf of the Fund, as
agreed upon by the parties.
------------- ----- ------------------------------------------------------------
X X 13. Review of N-SAR, Form N-lA and prospectuses, Prospectus
Supplements, N-14's and proxies.
------------- ----- ------------------------------------------------------------
X* X 14. Make available persons to serve as officers of the
Funds only in administrative or ministerial capacities
related to services provided by BISYS and its affiliates, or
as otherwise agreed in writing by BISYS.
------------- ----- ------------------------------------------------------------
X X 15. Provide support and services for fund and non-fund
mergers, conversions, and reorganizations.
------------- ----- ------------------------------------------------------------
X X 16. Review Account Applications and Shareholder Agreements.
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
BISYS 5/3 COMPLIANCE
------------- ----- ------------------------------------------------------------
X X 1. Review monthly compliance reports that are prepared by
the investment adviser(s).
------------- ----- ------------------------------------------------------------
X 2. Perform independent monthly portfolio compliance testing.
------------- ----- ------------------------------------------------------------
X X 3. Prepare quarterly tax compliance checklist for use by
investment adviser(s).
------------- ----- ------------------------------------------------------------
X 4. Notify appropriate Fund officers of ▇▇▇▇-to-market issues
pursuant to Board-approved procedures.
------------- ----- ------------------------------------------------------------
X X 5. Provide appropriate assistance with respect to SEC
inspections including (i) rendering advice regarding
proposed responses (ii) compiling data and other information
in response to SEC requests for information (iii)
communicating with SEC staff members, as necessary, and (iv)
meet with portfolio managers to provide guidance on audit.
------------- ----- ------------------------------------------------------------
X X 6. Provide appropriate assistance with respect to audits
conducted by the Fund's independent accountants including(i)
compiling data and other information and (ii) communicating
with independent accountants, as necessary.
------------- ----- ------------------------------------------------------------
X X 7. Consult with and advise, on a proactive basis, Fund
portfolio managers with respect to compliance matters.
------------- ----- ------------------------------------------------------------
X 8. Prepare quarterly brokerage allocation compliance
checklist and supporting documentation for use by investment
adviser(s).
------------- ----- ------------------------------------------------------------
X 9. Provide on-site compliance training for investment
advisory personnel, as requested.
------------- ----- ------------------------------------------------------------
X 10. Preparation of Fund-specific compliance manual.
------------- ----- ------------------------------------------------------------
X X 11. Provide investment adviser with portfolio compliance
checklists
------------- ----- ------------------------------------------------------------
X X 12. Provide Board with quarterly results of compliance
reviews and testing
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
BISYS 5/3 TAX AND FINANCIAL SERVICES
------------- ----- ------------------------------------------------------------
X 1. Prepare semi-annual/annual financial statements.
------------- ----- ------------------------------------------------------------
X 2. Prepare and file Form N-SAR and the Company's Form N-CSR
------------- ----- ------------------------------------------------------------
X 3. Calculate/distribute all standard performance information
------------- ----- ------------------------------------------------------------
X 4. Prepare annual Fund expense budget and monthly accrual
analyses
------------- ----- ------------------------------------------------------------
X 5. Validate/approve Fund expenses to be paid
------------- ----- ------------------------------------------------------------
X 6. Register Fund portfolios with NASDAQ
------------- ----- ------------------------------------------------------------
X X 7. Prepare financial materials for Board books.
------------- ----- ------------------------------------------------------------
X 8. Calculate declaration of income/capital gain
distributions in compliance with income/excise tax
distribution requirements.
------------- ----- ------------------------------------------------------------
X X 9. Review all dividend declarations to determine that such
distributions are not "preferential" under the Internal
Revenue Code.
------------- ----- ------------------------------------------------------------
X 10. Review and file federal and state income tax returns and
federal excise tax returns within statutory deadlines.
------------- ----- ------------------------------------------------------------
X 11. Prepare/distribute year-end shareholder tax information
letters and Forms 1099-MISC for trustee fees/vendor payments
within 30 days of calendar year-end.
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
X 12. Prepare and file holdings reports on Form N-Q as
required at the end of the first and third fiscal quarters
of each year.
------------- ----- ------------------------------------------------------------
X X 13. Provide on-site consulting services for conversions.
------------- ----- ------------------------------------------------------------
X X 14. Provide expense budgeting consulting to review expense
ratios/fee waivers.
------------- ----- ------------------------------------------------------------
LEGAL SERVICES
------------- ----- ------------------------------------------------------------
BISYS 5/3 GENERAL
------------- ----- ------------------------------------------------------------
X X 1. Maintain files of registration statements, Fund
contracts, Fund proxies and other Fund legal documents.
------------- ----- ------------------------------------------------------------
X 2. Provide assistance and consultation with respect to
product development issues.
------------- ----- ------------------------------------------------------------
X X 3. Provide assistance concerning matters pertaining to
Federal securities laws, and tax-related issues.
------------- ----- ------------------------------------------------------------
X 4. When BISYS is retained as Fund Distributor, prepare or
review broker-dealer agreements and agreements for
shareholder support services.
------------- ----- ------------------------------------------------------------
X X 5. Provide information concerning current legal and
regulatory developments.
------------- ----- ------------------------------------------------------------
X X 6. Provide comments, as appropriate, concerning regulatory
agency proposals.
------------- ----- ------------------------------------------------------------
X 7. Maintain appropriate insurance coverage on behalf of the
Fund in the form of (i) a Directors & Officers/Errors &
Omissions professional liability and (ii) a Fidelity Bond.
------------- ----- ------------------------------------------------------------
X 8. Prepare memoranda and other correspondence that outlines
the terms and conditions of the insurance policies described
in item 7 above
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
BISYS 5/3 BOARD MEETING MATTERS
------------- ----- ------------------------------------------------------------
X 1. Maintain calendar and files for all Board meetings,
including the maintenance of Fund minute books and corporate
records (e.g., Articles of Incorporation/Declaration of
Trust, Bylaws).
------------- ----- ------------------------------------------------------------
X X 2. Prepare quarterly Board meeting responsibility chart.
------------- ----- ------------------------------------------------------------
X 3. Provide appropriate personnel to attend Board meetings.
------------- ----- ------------------------------------------------------------
X 4. Prepare Board agendas and relevant sections of Board
materials.
------------- ----- ------------------------------------------------------------
X 5. Produce and distribute Board books.
------------- ----- ------------------------------------------------------------
X 6. Record minutes of Board meetings.
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
BISYS 5/3 REGISTRATION STATEMENTS
------------- ----- ------------------------------------------------------------
X X 1. Manage the process of updating and filing registration
statements by (i) reviewing or recommending proposed
disclosure changes, (ii) compiling data for purposes of
updating information, (iii) receiving disclosure comments
and communicating them to counsel to the Fund and the
financial printer and (iv) overseeing and approving
revisions that are made by the financial printer.
------------- ----- ------------------------------------------------------------
X X 2. Prepare periodic supplements to Fund prospectuses or, if
the parties agree, review such supplements that are
prepared by counsel to the Fund.
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
BISYS 5/3 PROXY MATERIALS
------------- ----- ------------------------------------------------------------
X 1. Review proxy statements that are prepared by counsel to
the Fund.
------------- ----- ------------------------------------------------------------
------------- ----- ------------------------------------------------------------
BISYS 5/3 BLUE SKY
------------- ----- ------------------------------------------------------------
X 1. Qualify the Fund and its shares with state's blue sky
authorities of designated upon client authorization.
------------- ----- ------------------------------------------------------------
X 2. Amend and renew sales permits as required from time to
time.
------------- ----- ------------------------------------------------------------
X 3. Monitor the sales of shares in individual states on a
daily basis upon receipt of sales information and, when
required, report sales to appropriate states.
------------- ----- ------------------------------------------------------------
X 4. Maintain Fund blue sky filing calendars.
------------- ----- ------------------------------------------------------------
X 5. Address all blue sky audit and examination issues.
------------- ----- ------------------------------------------------------------
X 6. Conduct blue sky fee analysis, upon request.
------------- ----- ------------------------------------------------------------
X 7. Produce checks required for state filing fees.
------------- ----- ------------------------------------------------------------
X 8. Review of state institutional exemptions when asked.
------------- ----- ------------------------------------------------------------
X 9. File fund documents (N-lA's, prospectuses, financial
statements, etc.) as required under state blue sky law.
------------- ----- ------------------------------------------------------------
*The provision of employees of BISYS to serve as officers of the
Company shall be subject to the provisions of the Supplemental Services
section set forth below and the BISYS Policies referred to therein.
List of services may not be exhaustive of services provided by Fifth Third under
the Administration Agreement; certain services, or aspects of certain services,
may be provided by both Fifth Third and BISYS.
SUPPLEMENTAL SERVICE PROVISIONS
To assist Fifth Third and the Company in connection with the Company's
obligations under Sections 302 and 906 of the Sarbanes Oxley Act of 2002 and
Rule 30a-2 and Rule 30a-3 under the 1940 Act (collectively, with such other
related regulatory provisions applicable to the Company, "▇▇▇▇▇▇▇▇-▇▇▇▇▇"),
Fifth Third and BISYS will each internally establish and maintain controls and
procedures ("BISYS internal controls") designed to ensure that information
recorded, processed, summarized, or reported by it with respect to ISYS and its
affiliates for Fifth Third on behalf of the Company and included in financial
information certified by the Company's officers ("Certifying Officers") on Form
N-CSR and Form N-Q("Reports") is (a) recorded, processed, summarized, and
reported by BISYS within the time periods specified in the Commission's rules
and forms and the corresponding disclosure controls and procedures of the Funds
("Fund DCPs"), and (b) accumulated and communicated to the relevant Certifying
Officers consistent with the Fund DCPs.
If requested by Certifying Officers with respect to a fiscal period
during which BISYS serves or served as financial sub-administrator, BISYS will
provide a sub-certification consistent with the requirements of ▇▇▇▇▇▇▇▇-▇▇▇▇▇
pertaining to BISYS' services. In rendering such sub- certifications concerning
Reports of the Funds, 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 Fifth Third and any other service providers to the Funds (other
than BISYS and its affiliates) and compliance by such officers and agents with
the Fund DCPs, including but not limited to, each Fund's investment adviser(s)
and custodian; and (c) assume that the Company has selected the appropriate
accounting policies for the Funds.
If BISYS is responsible for preparing and/or filing certified financial
reports of the Company ("Reports"), Fifth Third shall assist and cooperate with
BISYS (and shall cause its officers, and the Company and 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 the Form N-CSR and Form N-Q of the Funds,
including financial statements of the Funds, 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
Funds 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 the event that
an employee of BISYS serves as a Certifying Officer of the Company, the
following provisions shall apply:
Fifth Third represents and warrants that it and the Company recognize
the Company's obligations to comply with ▇▇▇▇▇▇▇▇-▇▇▇▇▇. Without limitation of
the foregoing, Fifth Third covenants that it and the Company shall maintain
responsibility for, and shall support and facilitate the role of each 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 Funds' 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.
Fifth Third agrees and acknowledges, and prior to the effective date of
this agreement shall advise and obtain the corresponding agreement and
acknowledgment of the Company, that the internal policies (the "BISYS Policies")
of BISYS Fund Services concerning arrangements in which its employees serve as
executive officers of mutual fund clients are applicable to the service of any
BISYS employee as a Certifying Officer or as Chief Legal Officer (if applicable)
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.
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, Fifth Third 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 (including sub-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 (i) meet within 10 days
before the filing date of each Report to review the accuracy and
completeness of the relevant Report and (ii) record its considerations
and conclusions in a written memorandum sufficient to support
conclusions pertaining to Fund DCPs as required by of the instructions
to Form N-CSR and Form N-Q. In conducting its review and evaluations,
the Fund DCP Committee shall:
establish a schedule to ensure that all required disclosures in Form
N-CSR and Form N-Q, including the financial statements, for the Funds are
identified and prepared in a timeframe sufficient to allow review;
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;
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 such Fund's Certifying.
Officers, such Funds' 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 and Chief Legal Officer (collectively,
the "Executive Officers"), so that the Executive Officers may inform the Funds'
audit committee and its auditors; and
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.
Fifth Third represents, warrants and covenants that the Company's
governing documents (such as its Agreement and Declaration of Trust and By-Laws)
and/or resolutions of its Board do, and at all times 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.
Fifth Third represents, warrants and covenants that the Company does,
and at all times 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;
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 (a) a material deviation from the BISYS Policies, (b) a
violation of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ or other applicable laws, or (c) 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.
Each Employee/Executive Officer that serves as a Certifying Officer
may, and Fifth Third shall and shall ensure that the Company shall, promptly
notify BISYS of any issue, matter or event that would be reasonably likely to
result in any claim by the Funds, any of the Funds' 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 Funds in a manner consistent with
▇▇▇▇▇▇▇▇-▇▇▇▇▇ and other applicable laws.
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 Fifth Third or 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), Fifth Third shall, and shall
cause the Company to, 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 o of
or resulting from the service of such Employee/Executive Officer as a Certifying
Officer or other executive officer of the Company.
SCHEDULE C
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
Pursuant to Section 1 of this Agreement, BISYS has agreed to perform
the services described in this Agreement in accordance with the service
standards set forth in this Schedule C. Such standards are contained on the page
attached hereto. The parties agree that such service standards may be revised,
from time to time, by mutual agreement.
In the event BISYS fails to meet a service standard in any particular
month, BISYS agrees to take appropriate corrective measures within the following
thirty-day period in order to be in compliance with the appropriate standard at
the end of such thirty-day period; provided, however, that the foregoing
requirement shall not apply in those instances in which BISYS' failure to meet a
service standard was due to circumstances beyond its control.
In the event BISYS fails to meet a particular service standard (except
for any failure due to circumstances beyond its control) in two consecutive
months, the fee payable to BISYS hereunder shall be reduced by one percent (1%)
or such lower amount as the parties shall agree upon for the second of those two
months. If such failure occurs in three consecutive months, the fee payable to
BISYS hereunder shall be reduced by a total of one and one-half percent (1.5%)
or such lower amount as the parties shall agree upon for the third of those
three months.
SERVICING STANDARDS
ITEM STANDARD
Fund Compliance Reviews Monthly
Financial Reports Printed and mailed within sixty (60)
days following fiscal year end,
or sixty (60) days following
semi-annual period as long as B1SYS
can select financial printer
Review of accruals Monthly
Prospectus Updates Prepared and ready to print
within five (5) days of the
effective date of the Registration
Statement.
SCHEDULE D
TO THE SUB-ADMIINISTRATION AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
FEES
In consideration of the services rendered and the expenses incurred pursuant to
this Agreement, and subject to the annual minimum fees set forth below, BISYS
shall be paid by Fifth Third on the first business day of each month, or at such
other time(s) as the parties hereto shall agree, fees computed daily at the
annual rates set forth below.
ASSET-BASED FEE
The relevant fees, including breakpoints set forth below shall be applied, to
the respective Funds separately and individually, and then the fees determined
thereby with respect to each Fund shall be aggregated in order to determine the
total sub-administrator fee. For each Fund, the various fee rates shall be
applied incrementally to the relevant asset level within the various
breakpoints.
FOR EACH FUND OTHER THAN INSTITUTIONAL FUNDS
1.45 basis points (.0145%) of the Fund's average daily net assets up to $700
million.
1.20 basis points (.0120%) of the Fund's average daily net assets from $700
million up to $1 billion.
1.05 basis points (.0105%) of the Fund's average daily net assets from $1
billion up to $2 billion.
..8 basis points (.0080%) of the Fund's average daily net assets over $2 billion.
FOR EACH FUND DESIGNATED AS INSTITUTIONAL FUND ON SCHEDULE A:
1.35 basis points (.0135%) of the Fund's average daily net assets up to $700
million.
1.20 basis points (.0120%) of the Fund's average daily net assets from $700
million up to 1 billion.
1.05 basis points (.0105%) of the Fund's average daily net assets from 1 billion
up to 2 billion.
..75 basis points (.0075%) of the Fund's average daily net assets from 2 billion.
Plus
N-Q Filing Fees equal to $ (amount to be mutually agreed upon by BISYS and Fifth
Third for the provision of such service) per Fund per N-Q filed on such Fund's
behalf.
MISCELLANEOUS
In addition, any new Funds established after the Effective Date shall be subject
to an annual minimum fee of $20,000
OUT-OF-EXPENSES
Out of pocket expenses are not included in the above fees and shall also be paid
to BISYS in accordance with the provisions of this Agreement.