Exhibit (h)(1)
TRANSFER AGENCY AGREEMENT
AGREEMENT made as of the [_________day of _____], 2005, between LEGACY
FUNDS GROUP (the "Company"), a Massachusetts business trust having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS FUND
SERVICES OHIO, INC. ("BISYS"), an Ohio corporation having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company and BISYS entered into a Transfer Agency Agreement
dated May 13, 2002 (the "2002 Agreement"), whereby BISYS agreed to perform
transfer agency services for the Company, which has continued in effect through
the date hereof;
WHEREAS, the Company desires that BISYS continue to perform transfer agency
services for each series of the Company (individually referred to herein as a
"Fund" and collectively as the "Funds"); 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
herein set forth, the parties agree as follows:
1. Services.
BISYS shall perform for the Company the transfer agent services set
forth in Schedule A hereto. BISYS also agrees to perform for the Company such
special services incidental to the performance of the services enumerated herein
as agreed to by the parties from time to time. BISYS shall perform such
additional services as are provided on an amendment to Schedule A hereof, in
consideration of such fees as the parties hereto may agree.
BISYS may, in its discretion, appoint in writing other parties
qualified to perform transfer agency services reasonably acceptable to the
Company (individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities under this Agreement with respect to a Fund; provided, however,
that the Sub-transfer Agent shall be the agent of BISYS and not the agent of the
Company or such Fund, and that BISYS shall be fully responsible for the acts of
such Sub-transfer Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of such Sub-transfer Agent.
2. Fees.
The Company shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in the
Omnibus Fee Agreement by and between the Company and BISYS dated as of
[________, 2005] (the "Fee Agreement").
Fees for any additional services to be provided by BISYS pursuant to an
amendment to Schedule A hereto shall be subject to mutual agreement at the time
such amendment to Schedule A is proposed.
3. Reimbursement of Expenses and Miscellaneous Service Fees.
(A) In addition to paying BISYS the fees set forth in the Fee Agreement,
the Company agrees to reimburse BISYS for BISYS' reasonable out-of-pocket
expenses in providing services hereunder, including without limitation, the
following:
(a) All freight and other delivery and bonding charges incurred by
BISYS in delivering materials to and from the Company and in
delivering all materials to shareholders;
(b) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS in
communication with the Company, the Company's investment adviser
or custodian, dealers, shareholders or others as required for
BISYS to perform the services to be provided hereunder;
(c) Sales taxes paid on behalf of the Company;
(d) Expenses associated with the tracking of "as-of" trades;
(e) The cost of microfilm or microfiche or other electronic retention
of records or other materials;
(f) Courier (delivery expenses);
(g) Check processing fees;
(h) Records retention / storage fees;
(i) Fulfillment;
(j) XXX custody and other related fees;
(k) NSCC and related costs;
(l) Sales taxes;
(m) Costs of statements and confirmations;
(n) Costs of tax forms;
(o) Costs of all other shareholder correspondence;
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(p) Post office boxes; and
(q) Any expenses BISYS shall incur at the written direction of an
officer of the Company thereunto duly authorized.
(B) In addition, BISYS shall be entitled to receive the following fees:
(a) Fees for managing and overseeing the report, print and mail
functions performed by BISYS using third-party vendors and costs
of postage, couriers, stock computer paper, statements, labels,
envelopes, checks, reports, letters, tax forms, proxies, notices
or other forms of printed material (including the costs of
preparing and printing all printed materials) which shall be
required by BISYS for the performance of the services to be
provided hereunder;
(b) System development fees, billed at the rate of $150 per hour, as
approved by the Company, and all systems-related expenses, agreed
in advance, associated with the provision of special reports and
services pursuant to Item 8 of Schedule B attached hereto;
(c) Fees for development of custom interfaces, billed at a mutually
agreed upon rate;
(d) Interactive Voice Response System fees, charged according to
BISYS' standard rate schedule, and applicable to the level of
service (e.g., basic, transaction, premium) selected;
(e) Expenses associated with BISYS' anti-fraud procedures and the
performance of delegated services under the written anti-money
laundering program ("AML Program") adopted by the Company; and
(f) Ad hoc reporting fees, billed at an agreed upon rate.
4. Effective Date.
This Agreement shall become effective as of the date first written
above (the "Effective Date").
5. Term.
This Agreement shall continue in effect with respect to a Fund, unless
earlier terminated by either party hereto as provided hereunder, for a period of
thirty-six (36) months from the Effective Date (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 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
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"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 within sixty (60) days of 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; 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.
After such termination, for so long as BISYS, 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. Fees and out-of-pocket
expenses incurred by BISYS but unpaid by the Company upon such termination shall
be immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Company, in addition to the fees and
disbursements provided by the Fee Agreement and Section 3 hereof, the amount of
all of BISYS' reasonable cash disbursements in connection with BISYS' activities
in effecting such termination, including without limitation, the delivery to the
Company and/or its distributor or investment adviser and/or other parties, 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, BISYS is replaced as transfer agent, 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-transfer Agent appointed by BISYS
as provided in Section 1 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 BISYS equal to 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 number of Company shareholder accounts and 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.
In the event the Company 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 transfer agency services consistent with this
Agreement,
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including the level of assets subject to such services. The one-time cash
payment referenced above shall be due and payable on the day prior to the first
day in which BISYS is replaced or a third party is added.
The parties further acknowledge and agree that, in the event BISYS is
replaced, or a third party is added, as set forth above, (i) a determination of
actual damages incurred by BISYS would be extremely difficult, and (ii) the
liquidated damages provision contained herein is intended to adequately
compensate BISYS for damages incurred and is not intended to constitute any form
of penalty.
6. Standard of Care; Uncontrollable Events; Limitation of Liability.
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Company 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. Upon the Company's reasonable request, BISYS shall provide
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 the Company, at such times as the Company may
reasonably require, 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, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST REVENUE OR
LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR
ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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7. Legal Advice.
BISYS shall notify the Company at any time BISYS believes that it is
in need of the advice of counsel (other than counsel in the regular employ of
BISYS or any affiliated companies) with regard to BISYS' responsibilities and
duties pursuant to this Agreement; and after so notifying the Company, BISYS, at
its discretion, shall be entitled to seek, receive and act upon advice of legal
counsel of its choosing, such advice to be at the expense of the Company or
Funds unless relating to a matter involving BISYS' willful misfeasance, bad
faith, gross negligence or reckless disregard with respect to BISYS'
responsibilities and duties hereunder and BISYS shall in no event be liable to
the Company or any Fund or any shareholder or beneficial owner of the Company
for any action reasonably taken pursuant to such advice.
8. Instructions.
Whenever BISYS is requested or authorized to take action hereunder
pursuant to instructions from a shareholder, or a properly authorized agent of a
shareholder ("shareholder's agent"), concerning an account in a Fund, BISYS
shall be entitled to rely upon any certificate, letter or other instrument or
communication (including electronic mail), believed by BISYS to be genuine and
to have been properly made, signed or authorized by an officer or other
authorized agent of the Company or by the shareholder or shareholder's agent, as
the case may be, and shall be entitled to receive as conclusive proof of any
fact or matter required to be ascertained by it hereunder a certificate signed
by an officer of the Company or any other person authorized by the Company's
Board of Trustees (hereafter referred to as the "Trustees") or by the
shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Company relating to the Funds to the extent that such
services are described therein unless BISYS receives written instructions to the
contrary in a timely manner from the Company.
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 conclusively assume that any special procedure
which has been approved by an executive officer of the Company (other than an
officer or employee of BISYS) does not conflict with or violate any requirements
of the Company's Declaration of Trust, By-Laws or then-current prospectuses, or
any rule, regulation or requirement of any regulatory body.
The Company acknowledges receipt of a copy of BISYS' policy related to
the acceptance of trades for prior day processing (the "BISYS As-Of Trading
Policy"). BISYS may amend the BISYS As-of Trading Policy from time to time in
its sole discretion [Fund Counsel wants to add "subject to the approval of the
Company's Board of Trustees." BISYS can CONSIDER only if the Company adopts the
BISYS As-Of Trading Policy as its own.] A copy of any such amendments shall be
delivered to the Company upon request. BISYS may apply the BISYS As-Of Trading
Policy whenever applicable, unless BISYS agrees in writing to process
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trades according to such other as-of trading policy as may be adopted by the
Company and furnished to BISYS by the Company.
The Company acknowledges and agrees that deviations from BISYS'
written transfer agent compliance procedures may involve a substantial risk of
loss. In the event an authorized representative of the Company requests that an
exception be made from any written compliance or transfer agency procedures
adopted by BISYS, or any requirements of the AML Program (as defined in Section
22), BISYS may in its sole discretion determine whether to permit such
exception. In the event BISYS determines to permit such exception, the same
shall become effective when set forth in a written instrument executed by an
authorized representative of the Trust (other than an employee of BISYS) and
delivered to BISYS (an "Exception"); provided that an Exception concerning the
requirements of the Company's AML Program shall be authorized by the Company's
AML Compliance Officer (as defined in Section 22). An Exception shall be deemed
to remain effective until the relevant instrument expires according to its terms
(or if no expiration date is stated, until BISYS receives written notice from
the Company that such instrument has been terminated and the Exception is no
longer in effect). Notwithstanding any provision in this Agreement that
expressly or by implication provides to the contrary, as long as BISYS acts in
good faith, BISYS shall have no liability for any loss, liability, expenses or
damages to the Company resulting from the Exception, and the Company shall
indemnify BISYS and hold BISYS harmless from any loss, liability, expenses
(including reasonable attorneys fees) and damages resulting to BISYS therefrom.
9. Indemnification.
The Company agrees to indemnify and hold harmless BISYS, its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, whether groundless or otherwise, and from
and against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character
("Losses") arising out of or in any way relating to BISYS' actions taken or
nonactions with respect to the performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to BISYS by the Company, the investment
adviser and on any records provided by any fund accountant or custodian thereof
or any other authorized agents of the Company with which BISYS must interface in
providing services; provided that this indemnification shall not apply to
actions or omissions of BISYS in cases of its own bad faith, willful
misfeasance, negligence or from reckless disregard by it of its obligations and
duties; and further provided that prior to confessing any claim against it which
may be the subject of this indemnification, BISYS shall give the Company written
notice of and reasonable opportunity to defend against said claim in its own
name or in the name of BISYS.
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
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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 on behalf of the Company all books and
records which the Company or BISYS is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the Investment Company Act of 1940, as
amended (the "1940 Act"), relating to the maintenance of books and records in
connection with the services to be provided hereunder. BISYS further agrees that
all such books and records shall be the property of the Company and to make such
books and records available for inspection by the Company or by the Securities
and Exchange Commission (the "Commission") at reasonable times and otherwise to
keep confidential all books and records and other information relative to the
Company and its shareholders, except when (a) disclosure is required by law, (b)
BISYS is advised by counsel that it may incur liability for failure to make a
disclosure, (c) BISYS is requested to divulge such information by
duly-constituted authorities or court process, or (d) 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 or when requested by the Company, the shareholder, or
shareholder's agent, or the dealer of record as to such account. The provisions
of this Section 10 are subject to the provisions of Section 22.
11. Reports.
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BISYS will furnish to the Company and to its properly-authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Company in writing,
such reports at such times as are prescribed in Schedule B attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
B. The Company agrees to examine each such report or copy promptly and will
report or cause to be reported any errors or discrepancies therein. In the event
that errors or discrepancies, except such errors and discrepancies as may not
reasonably be expected to be discovered by the recipient within twenty (20) days
after conducting a diligent examination, are not so reported within the
aforesaid period of time, a report will for all purposes be accepted by and
binding upon the Company and any other recipient, and BISYS shall have no
liability for errors or discrepancies therein and shall have no further
responsibility with respect to such report except to perform reasonable
corrections of such errors and discrepancies within a reasonable time after
requested to do so by the Company.
12. Rights of Ownership.
All computer programs and procedures developed to perform services
required to be provided by BISYS under this Agreement are the property of BISYS.
All records and other data except such computer programs and procedures are the
exclusive property of the Company and all such other records and data will be
furnished to the Company in appropriate form as soon as practicable after
termination of this Agreement for any reason.
13. Return of Records.
BISYS may at its option at any time, and shall promptly upon the
Company's demand, turn over to the Company 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 the Company, such documents and
records will be retained by BISYS for six years from the year of creation. At
the end of such six-year period, such records and documents will be turned over
to the Company unless the Company authorizes in writing the destruction of such
records and documents.
14. Bank Accounts.
BISYS is hereby granted such power and authority as may be necessary
to establish and maintain one or more bank accounts for the Company with such
bank or banks as are selected or approved by the Company, as are necessary in
order that BISYS may perform the services required to be performed hereunder.
The Company shall be deemed the customer of such bank or banks for all purpose
in connection with such accounts. To the extent that the performance of such
services shall require BISYS directly to disburse amounts for payment of
dividends, redemption proceeds or other purposes, the Company and Funds shall
provide such
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bank or banks with all instructions and authorizations necessary for BISYS to
effect such disbursements.
15. Representations of the Company.
The Company certifies to BISYS that: (a) as of the close of business
on the Effective Date, each Fund which is in existence as of the Effective Date
has authorized unlimited shares, and (b) by virtue of its Declaration of Trust,
shares of each Fund which are redeemed by the Company may be sold by the Company
from its treasury, and (c) this Agreement has been duly authorized by the
Company and, when executed and delivered by the Company, will constitute a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties. The Company also
represents and warrants that (a) the Company has adopted the written AML Program
that has been submitted to BISYS pursuant to Section 18, and has appointed an
officer of the Company as the Company's anti-money laundering compliance officer
("AML Compliance Officer"), (b) the AML Program and the designation of the AML
Officer have been approved by the Trustees, (c) the delegation of certain
services thereunder to BISYS, as provided in Section 22, has been approved by
the Trustees, and (d) the Company will submit any material amendments to the AML
Program to BISYS for BISYS' review and consent prior to adoption in accordance
with Section 20.
16. Representations of BISYS.
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in, substantial compliance with all provisions of law, including
Section 17A(c) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), required in connection with the performance of its duties under this
Agreement; (b) the various procedures and systems which BISYS 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 of the Company and
BISYS' records, data, equipment, facilities and other property used in the
performance of its obligations hereunder are adequate and that it will make such
changes therein from time to time as are required for the secure performance of
its obligations hereunder; and (c) 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.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS
AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY
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GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT BY BISYS
ARE COMPLETELY DISCLAIMED.
17. Insurance.
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to directors and officers errors and
omissions coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. BISYS shall notify the Company should its insurance
coverage with respect to professional liability or errors and omissions coverage
be canceled or materially reduced. Such notification shall include the date of
change and the reasons therefor. BISYS shall notify the Company of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Company
from time to time as may be appropriate of the total outstanding claims made by
BISYS under its insurance coverage, if such claims materially impair or
thereafter to materially impair the adequacy of BISYS' coverage.
18. Information to be Furnished by the Company and Funds.
The Company has furnished to BISYS the following:
(a) Copies of the Declaration of Trust of the Company and of any
amendments thereto, certified by the proper official of the state
in which such Declaration has been filed.
(b) Copies of the following documents:
1. The Company's Bylaws and any amendments thereto;
2. Certified copies of resolutions of the Trustees covering the
following matters:
A. Approval of this Agreement and authorization of a
specified officer of the Company to execute and deliver
this Agreement and authorization for specified officers
of the Company to instruct BISYS hereunder; and
B. Authorization of BISYS to act as Transfer Agent for the
Company on behalf of the Funds.
(c) A list of all officers of the Company, with the Company's AML
Compliance Officer included among the officers therein, and any
other persons (who may be associated with the Company or its
investment advisor, together with specimen signatures of those
officers, who (except as otherwise provided herein to the
contrary) are authorized to instruct BISYS in all matters.
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(d) Two copies of the following (if such documents are employed by
the Company):
1. Prospectuses and Statement of Additional Information;
2. Distribution Agreement; and
3. All other forms commonly used by the Company or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(e) A certificate as to shares of beneficial interest of the Company
authorized, issued, and outstanding as of the Effective Date of
BISYS' appointment as Transfer Agent (or as of the date on which
BISYS' services are commenced, whichever is the later date) and
as to receipt of full consideration by the Company for all shares
outstanding, such statement to be certified by the Treasurer of
the Company.
(f) A copy of the Company's written AML Program, including related
Policies and Procedures.
19. Information Furnished by BISYS.
BISYS has furnished to the Company the following:
(a) BISYS' Articles of Incorporation.
(b) BISYS' Bylaws and any amendments thereto.
(c) Certified copies of actions of BISYS covering the following
matters:
1. Approval of this Agreement, and authorization of a specified
officer of BISYS to execute and deliver this Agreement;
2. Authorization of BISYS to act as Transfer Agent for the
Company.
3. The current BISYS "As Of" Trading Policy.
4. The written program concerning anti-money laundering
services rendered by BISYS to its various clients.
20. Amendments to Documents.
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The Company shall furnish BISYS written copies of any material
amendments to, or material changes in, any of the items referred to in Section
18 hereof forthwith upon such amendments or changes becoming effective. In
addition, the Company agrees that no amendments will be made to the Prospectuses
or Statement of Additional Information of the Company or the AML Program of the
Company, which might have the effect of changing the procedures employed by
BISYS in providing the services agreed to hereunder or which amendment might
affect the duties of BISYS hereunder unless the Company first obtains BISYS'
approval of such amendments or changes which approval shall not be unreasonably
withheld.
21. Reliance on Amendments.
BISYS may rely on any amendments to or changes in any of the documents
and other items to be provided by the Company pursuant to Sections 18 and 20 of
this Agreement and the Company hereby indemnifies and holds harmless BISYS from
and against any and all claims, demands, actions, suits, judgments, liabilities,
losses, damages, costs, charges, counsel fees and other expenses of every nature
and character which may result from actions or omissions on the part of BISYS in
reasonable reliance upon such amendments and/or changes. Although BISYS is
authorized to rely on the above-mentioned amendments to and changes in the
documents and other items to be provided pursuant to Sections 18 and 20 hereof,
BISYS shall be under no duty to comply with or take any action as a result of
any of such amendments or changes unless the Company first obtains BISYS'
written consent to and approval of such amendments or changes.
22. Compliance with Law.
Except for the obligations of BISYS set forth in Section 10 hereof,
the Company assumes full responsibility for the preparation, contents, and
distribution of each prospectus of the Company as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws, rules and regulations of governmental
authorities having jurisdiction. BISYS shall have no obligation to take
cognizance of any laws relating to the sale of the Company's shares. The Company
represents and warrants that no shares of the Company will be offered to the
public until the Company's registration statement under the 1933 Act and the
1940 Act has been declared or becomes effective.
The Company acknowledges that it is a financial institution subject to
the law entitled Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of
2001 and the Bank Secrecy Act (collectively, the "AML Acts") and shall comply
with the AML Acts and applicable regulations adopted thereunder (collectively,
the "Applicable AML Laws") in all relevant respects, subject to the delegation
of certain responsibilities to BISYS, as provided in the next paragraph below.
The Company hereby delegates to BISYS the performance, on behalf of
the Company, of the anti-money laundering services set forth under Item 6 of
Schedule A (the "AML Services") as concerns the shareholder accounts maintained
by BISYS pursuant to this Agreement (including direct accounts; accounts
maintained through FUND/SERV and Networking, to the extent provided below, and
omnibus accounts, to the extent provided below).
13
BISYS agrees to the foregoing delegation and agrees to perform such services in
accordance with the Company's AML Program. In connection therewith, BISYS agrees
to maintain policies and procedures, and related internal controls, that are
consistent with the Company's AML Program and the requirement that the Company
employ procedures reasonably designed to achieve compliance with the Applicable
AML Laws, including the requirement to have policies and procedures that can be
reasonably expected to detect and cause the reporting of transactions under
Section 5318 of the Bank Secrecy Act. BISYS' obligations under this delegation
shall be subject to Sections 20 and 21, which require that the AML Program and
any material amendments thereto be submitted to BISYS for its review and
consent.
The Company agrees and acknowledges that, notwithstanding the
delegation provided for in the foregoing paragraph, the Company maintains full
responsibility for ensuring that its AML Program is, and shall continue to be,
reasonably designed to ensure compliance with the Applicable AML Laws, in light
of the particular business of the Company, taking into account factors such as
its size, location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Company also
acknowledges that the performance of the AML Services involves the exercise of
discretion which in some circumstances may result in consequences to the Company
and its shareholders (such as in the case of the reporting of suspicious
activities and the freezing of shareholder accounts). In this regard, (i) under
circumstances in which the AML Program authorizes the taking of certain actions,
BISYS is granted the discretion to take any such action as may be authorized
under the AML Program, and consultation with Company shall not be required in
connection therewith unless specifically required under the AML Program, and
(ii) the Company instructs BISYS that it may avail the Company of any safe
harbor from civil liability that may be available under Applicable AML Laws for
making a disclosure or filing a report thereunder.
As concerns Networking Level III accounts and omnibus accounts, the
AML Services performed by BISYS are subject to a more limited scope, as
discussed in the Release concerning the final rule of the Department of the
Treasury, 31 CFR 103 and of the Commission, 17 CFR 270, entitled Customer
Identification Programs for Mutual Funds issued on May 9, 2003 and subsequent
guidance issued jointly by such agencies entitled Question and Answer Regarding
the Mutual Fund Customer Identification Program Rule (31 CFR 103.131) issued on
August 11, 2003
23. 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 the Company, to it at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, Attn: _____________, along with a copy to First Financial
Capital Advisors LLC, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attn: Xxxxxx Xxxxx;
and if to BISYS, to it at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: General
Counsel, or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section.
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24. 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 25 shall not limit or in any way affect
BISYS' right to appoint a Sub-transfer Agent pursuant to Section 1 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
25. Governing Law and Matters Relating to the Company as a Massachusetts
Business Trust.
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. 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 any of them personally, but
shall bind only the trust property of the Company as provided in the Company's
Declaration of Trust.
26. Activities of BISYS.
The services of BISYS rendered to the Company 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 the Company are or may be or become interested in
BISYS, as officers, employees or otherwise and that partners, officers and
employees of BISYS and its counsel are or may be or become similarly interested
in the Company, and that BISYS may be or become interested in the Company as a
Shareholder or otherwise.
27. Privacy.
Nonpublic personal financial information relating to consumers or
customers of the Company provided by, or at the direction of the Company to
BISYS, or collected or retained by BISYS in the course of performing its duties
as transfer agent 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 except at the direction of the Company or
as required or permitted by law. BISYS shall have in place and shall maintain
physical, electronic
15
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 BISYS that it has adopted a Statement of its privacy
policies and practices as required by Securities and Exchange Commission
Regulation S-P and agrees to provide BISYS with a copy of that statement
annually.
28. Access to be Provided.
BISYS shall grant reasonable access to each of the Company, the AML
Compliance Officer, and regulators having jurisdiction over the Company, to the
books and records maintained by BISYS as the same relates to the services
performed hereunder on behalf of the Company. Records may be edited or redacted
to maintain confidentiality of materials related to other clients of BISYS.
BISYS shall make its relevant personnel available to meet with the Trustees
concerning the AML Services at least annually or at such other intervals as may
be reasonably necessary or appropriate.
29. 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 supersedes all prior negotiations,
understandings and agreements bearing upon the subject
matter covered herein, including, without limitation, the
2002 Agreement.
(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.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
LEGACY FUNDS GROUP
By:
------------------------------------
Title:
---------------------------------
BISYS FUND SERVICES OHIO, INC.
By:
------------------------------------
Title:
---------------------------------
17
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
LEGACY FUNDS GROUP
AND
BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchase of new shares,
through dividend reimbursement.
2. Shareholder Information Services
a. Make information available to shareholder servicing unit and other
remote access units regarding trade date, share price, current
holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or special
order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders.
3. Compliance Reporting
a. Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. and the States in
which the Fund is registered.
b. Prepare and distribute appropriate Internal Revenue Service forms for
corresponding Fund and shareholder income and capital gains.
c. Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
a. Provide reports for tracking rights of accumulation and purchases made
under a Letter of Intent.
b. Account for separation of shareholder investments from transaction
sale charges for purchase of Fund shares.
c. Calculate fees due under 12b-1 plans for distribution and marketing
expenses.
d. Track sales and commission statistics by dealer and provide for
payment of commissions on direct shareholder purchases in a load Fund.
5. Shareholder Account Maintenance
a. Maintain all shareholder records for each account in the Company.
b. Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
c. Record shareholder account information changes.
d. Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
a. Verify shareholder identity upon opening new accounts.
b. Monitor, identify and report shareholder transactions and identify and
report suspicious activities that are required to be so identified and
reported, and provide other required reports to the Securities and
Exchange Commission, the U.S. Treasury Department, the Internal
Revenue Service or each agency's designated agent, in each case
consistent with the Company's AML Program.
c. Place holds on transactions in shareholder accounts or freeze assets
in shareholder accounts, as provided in the Company's AML Program.
d. Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
e. Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Company's AML Program, and make the same
available for inspection by (i) the Company's AML Compliance Officer,
(ii) any auditor of the Company's AML Program or related procedures,
policies or controls that has been designated by the Company in
writing, or (iii) regulatory or law enforcement authorities, and
otherwise make said records or other documents available at the
direction of the Company's AML Compliance Officer.
f. At least quarterly, provide a report to the Company containing all of
the information listed on Schedule B hereto.
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
LEGACY FUNDS GROUP
AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
a. Beginning Balance
b. Dealer Transactions
c. Shareholder Transactions
d. Reinvested Dividends
e. Exchanges
f. Adjustments
g. Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to transfer
agency operations pursuant to AICPA Statement on Auditing Standards Number
70.
8. Such special reports and additional information that the parties may agree
upon, from time to time.
In addition to the forgoing, following each quarterly period, BISYS will provide
a report to the following effect pertaining to the AML Services rendered by
BISYS hereunder during such quarterly period:
- performed good order review for all new and reregistered accounts;
- performed acceptance review for all monetary instruments received;
- administered signature guarantee policy in accordance with prospectus
requirements;
- administered escrow hold policy in accordance with prospectus requirements;
- verified customer address changes;
- verified customer identification for all new accounts and all name changes
on existing accounts;
- monitored all purchase transactions made with cash equivalents totaling in
excess of $10,000 resulting in the filing of [x] Form 8300 reports during
the period. The Fund does not accept cash or currency;
- monitored all accounts for suspicious activity resulting in the filing of
[x] Form SAR reports during the period;
- reviewed shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental organizations,
such as the Office of Foreign Asset Control resulting in the freezing and
reporting of [x] accounts during the period;
- reviewed shareholder names in compliance with FinCEN 314(a) requests,
resulting in the reporting of accounts during the period;
- created the documentation necessary to provide a basis for law enforcement
authorities to trace illicit funds; and
- maintained all records and other documentation related to shareholder
accounts and transactions required to be prepared and maintained pursuant
to the Fund's anti-money laundering program for all BISYS transfer agent
services.
The following will be provided in such report if the Trust falls under the
related USA PATRIOT Act provisions:
- performed the required due diligence to help prevent the opening of any
accounts for foreign shell banks during the period either directly or
through correspondent accounts; and
- performed required due diligence on any new correspondent accounts opened
during the period.
