AMENDMENT NO. 1 TO OMNIBUS FEE AGREEMENT
Exhibit (h)(5)
AMENDMENT NO. 1 TO
OMNIBUS FEE AGREEMENT
OMNIBUS FEE AGREEMENT
AMENDMENT NO. 1 made as of the 26th day of August, 2008, between First Funds (formerly known
as Legacy Funds Group) (the “Trust”), a Massachusetts business trust, and Citi Fund Services Ohio,
Inc., an Ohio corporation, formerly known as BISYS Fund Services Ohio, Inc. (“Citi”), to that
certain Omnibus Fee Agreement, dated as of August 26, 2005, between the Trust and Citi (as
previously amended and as in effect on the date hereof, the “Agreement”). All capitalized terms
used but not defined herein shall have the meanings given to them in the Agreement.
WHEREAS, Citi and the Trust have entered into a Co-Administration Agreement, a Fund Accounting
Agreement and a Transfer Agency Agreement (collectively, the “First Funds Agreements”) with respect
to the Funds, pursuant to which Citi provides certain services to the Funds; and
WHEREAS, the parties have agreed to extend the First Funds Agreements until August 25, 2009
and as part of the extension, the parties wish to amend the compensation payable to Citi for the
provision of services under the First Funds Agreements; and
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter contained
and for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Trust and Citi hereby agree as follows:
1. Asset-Based Fees.
Section 2(A) of the Agreement is deleted and replaced with the following:
“2(A) An asset-based fee determined as follows:
| Average Daily Net Assets of the Funds: | Fee Amount | |
$0 — up to $500 million
|
Eleven and three quarter one-hundredths of one percent (.1175 or 11.75 basis points) of the Funds’ average daily net assets | |
$500 million to $700 million
|
Ten and three quarter one-hundredths of one percent (.1075 or 10.75 basis points) of the Funds’ average daily net assets | |
$700 million to $900 million
|
Nine and three quarter one-hundredths of one percent (.0975 or 9.75 basis points) of the Funds’ average daily net assets | |
$900 million to $1 billion
|
Eight and one quarter one-hundredths of one percent (.0825 or 8.25 basis points) of the Funds’ average daily net assets |
| Average Daily Net Assets of the Funds: | Fee Amount | |
Over $1 billion
|
Seven and one-half one-hundredths of one percent (.075 or 7.5 basis points) of the Funds’ average daily net assets |
Minimum Requirements: The foregoing asset-based fees are subject to an aggregate complex
monthly minimum fee calculated by multiplying $6,250 by the number of Funds in the complex. For
purposes of clarification, it is understood that the Per Account Fee, Additional Per Class Fee, AML
Service Charges, NQ Filing Fees, CCO Compliance Services Fee, 22c-2 Fees, Performance Reporting
Fees, out-of-pocket expenses and any other fees or expenses shall not be applied to the monthly
minimum.
Plus a shareholder account charge of $25 for each shareholder account in excess of 100
accounts (open or closed) in the relevant Fund, as reflected on Citi’s transfer agent system at any
time during the relevant period.
Per Class Monthly Fee (in excess of 1 per Fund): $2,083.33”
2. N-Q Filing Fees.
The first sentence of Section 2(B) of the Agreement is deleted and replaced with the
following:
“In addition, Citi shall be entitled to N-Q Filing Fees equal to $1,500 per Fund per N-Q filed
on such Fund’s behalf.”
3. Custody Fee.
Notwithstanding anything in the Agreement to the contrary, the parties agree that the custody
fee for each Fund shall not be governed by this Agreement, but shall be governed by the agreement
between the Trust and the custodian.
4. Representations and Warranties.
(a) The Trust represents (i) that it has full power and authority to enter into and perform
this Amendment, (ii) that this Amendment, and all information relating thereto has been presented
to and reviewed by the Board of Directors of the Funds (collectively, the “Board”), and (iii) that
the Board has approved this Amendment.
(b) Citi represents that it has full power and authority to enter into and perform this
Amendment.
5. Miscellaneous.
(a) This Amendment supplements and amends the Agreement. The provisions set forth in this
Amendment supersede all prior negotiations, understandings and agreements bearing upon the subject
matter covered herein, including any conflicting provisions of the Agreement or
any provisions of
the Agreement that directly cover or indirectly bear upon matters covered under this Amendment.
(b) Each reference to the Agreement in the Agreement (as it existed prior to this Amendment)
and in every other agreement, contract or instrument to which the parties are bound, shall
hereafter be construed as a reference to the Agreement as amended by this Amendment. Except as
provided in this Amendment, the provisions of the Agreement remain in full force and effect. No
amendment or modification to this Amendment shall be valid unless made in writing and executed by
both parties hereto.
(c) Paragraph headings in this Amendment are included for convenience only and are not to be
used to construe or interpret this Amendment.
(d) This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed
all as of the day and year first above written.
| FIRST FUNDS | ||||
| By: | /s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | J. ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | President | |||
| CITI FUND SERVICES OHIO, INC. | ||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | President | |||