Exhibit 23(h)(3)
SUB-ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of the 13th day of May, 2002 by and between
BISYS FUND SERVICES LIMITED PARTNERSHIP ("BISYS"), a limited partnership
organized under the laws of the State of Ohio and having its principal office at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, and FIRST FINANCIAL CAPITAL ADVISORS LLC (the
"Service Company"), an Ohio limited liability company.
WHEREAS, BISYS has entered into an Administration Agreement dated May 13,
2002 (the "Administration Agreement") with Legacy Funds Group (the "Company"), a
Massachusetts business trust registered with the Securities and Exchange
Commission (the "Commission") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), concerning the
provision of various administration services for the Company and its investment
portfolios (individually referred to herein as a "Portfolio" and collectively as
the "Portfolios");
WHEREAS, BISYS desires to retain the Service Company to assist it in
performing certain administration services for the Company and the Portfolios;
and
WHEREAS, the Service Company is willing to perform such services, and
BISYS is willing to retain the Service Company, on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter contained, BISYS and the Service Company agree as follows:
1. Retention of the Service Company.
BISYS hereby appoints the Service Company, subject to the
supervision, direction and control of the Company's Board of Trustees, to
furnish the Company and its Portfolios with the services described in Schedule A
hereto (the "Services").
2. Allocation of Charges and Expenses.
(A) The Service Company. The Service Company shall furnish at its own
expense the executive, supervisory and clerical personnel necessary to perform
the Services. The Service Company shall also provide the items which it is
obligated to provide under this Agreement, and shall pay all compensation, if
any, of officers of the Company as well as all Trustees of the Company who are
affiliated persons of the Service Company or any affiliated company of the
Service Company.
(B) BISYS. BISYS acknowledges that it will continue to perform all
services required to be performed by it as the Administrator under the
Administration Agreement, except those services as are required to be performed
by the Service Company hereunder, including the Services. The
parties agree and acknowledge that pursuant to the Administration Agreement, the
Company has undertaken to pay or cause to be paid all other expenses of the
Company not otherwise allocated to BISYS as the Administrator under the
Administration Agreement, including, without limitation, organization costs,
taxes, expenses for legal and auditing services, the expenses of preparing
(including typesetting), printing and mailing reports, prospectuses, statements
of additional information, proxy solicitation material and notices to existing
shareholders, all expenses incurred in connection with issuing and redeeming
shares, the costs of custodial services, the cost of initial and ongoing
registration of the shares under Federal and state securities laws, fees and
out-of-pocket expenses of Trustees who are not affiliated persons of BISYS or
the investment adviser to the Company or any affiliated corporation of BISYS or
such investment adviser, insurance, interest, brokerage costs, litigation and
other extraordinary or nonrecurring expenses, and all fees and charges of
investment advisers to the Company.
3. Compensation of the Service Company.
BISYS shall pay the Service Company, for the services to be provided
by the Service Company under this Agreement, the fees set forth in Schedule B.
Such amounts shall be paid by BISYS from amounts it receives from the Company in
excess of its minimum omnibus fee provided for under the Omnibus Fee Agreement
between the Company, BISYS and BISYS Fund Services Ohio, Inc. dated as of May
13, 2002 (the "Omnibus Fee Agreement").
4. Limitation of Liability of the Service Company and BISYS.
The duties of the Service Company shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be
asserted against it hereunder. The Service Company shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of reckless disregard of its obligations and duties hereunder,
except as may otherwise be provided under provisions of applicable law which
cannot be waived or modified hereby. (As used in this Section 4, the term "the
Service Company" shall include directors, officers, employees and other agents
of the Service Company as well as the Service Company itself, to the extent such
persons' conduct relates to the performance of then Services hereunder.) Any
officer, director, employee or agent of the Service Company who is or who
becomes an officer, Trustee, employee or agent of the Company shall be deemed,
when engaged in rendering the Services hereunder in such capacity, to be
rendering services directly to or for the Company, and shall not be deemed to be
acting as an officer, director, employee or agent or one under the control or
direction of BISYS.
So long as the Service Company acts in good faith and with due
diligence and without negligence, BISYS shall indemnify Service Company and hold
it harmless from and against any and all actions, suits and claims, whether
groundless or otherwise, and from and against any and all losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and
2
liabilities (including reasonable investigation expenses) arising directly or
indirectly out of the Service Company's actions taken or nonactions with respect
to the performance of services hereunder; provided, however, that BISYS's
obligation under the foregoing indemnity and hold harmless shall apply only to
the extent that BISYS is in fact fully indemnified and held harmless by the
Company under the Administration Agreement for any and all losses, damages,
costs, charges, reasonable counsel fees and disbursements, payments, expenses
and liabilities (including reasonable investigation expenses) incurred by BISYS
(including, without limitation, any indemnification amounts payable to the
Service Company), and shall be due only if, as and when such amounts payable to
the Service Company by BISYS under this paragraph are in fact received by BISYS
from the Company.
The Service Company shall indemnify BISYS and hold it harmless from
and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all losses, damages, costs, charges,
reasonable counsel fees and disbursements, payments, expenses and liabilities
(including reasonable investigation expenses) arising directly or indirectly out
of the Service Company's appointment as sub-administrator, and any actions and
omissions taken by thereunder involving its negligence, willful misfeasance or
reckless disregard of its obligations under this Agreement.
5. Activities of the Service Company.
The services of Service Company to be rendered hereunder are not to
be deemed to be exclusive. The Service Company 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 the Service Company, as officers, employees or otherwise
and that directors, officers and employees of the Service Company and its
counsel are or may be or become similarly interested in the Company, and that
the Service Company may be or become interested in the Company as a shareholder
or otherwise.
6. Duration of this Agreement.
This Agreement shall become effective upon the date first upon
written, and shall continue in effect during the term of the Administration
Agreement, including any renewals thereof. This Agreement shall terminate
automatically upon the termination of the Administration Agreement. The Service
Company expressly agrees and acknowledges that the exercise by BISYS of any
rights it may have under the Administration Agreement, including, in particular,
any rights BISYS may have from time to time to terminate the Administration
Agreement, shall not be restricted or limited in any manner by this Agreement
and shall not give rise to any claim by the Service Company hereunder.
In addition to the foregoing, this Agreement may be terminated for
"cause." For these purposes, "cause" shall mean (a) a material breach of this
Agreement that has not been remedied for
3
thirty (30) days following written notice of such breach from the non-breaching
party; (b) a final, unappealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been found guilty of criminal
or unethical behavior in the conduct of its business; (c) financial difficulties
on the part of the party to be terminated which are evidenced by the
authorization or commencement of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or involuntary case under Title 11 of
the United States Code, as from time to time is in effect, or any applicable
law, other than said Title 11, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the rights
of creditors; or (d) any failure on the part of the Company to pay an amount
that is due and payable to BISYS or any of its affiliates under any agreement to
which the Company is a party within sixty (60) days following the due date. For
purposes of this definition of "cause," a material breach shall include, but not
be limited to, any failure on the part of BISYS to pay the fees due and payable
to the Service Company pursuant to Section 3 hereunder within sixty (60) days
following the due date.
7. Assignment.
This Agreement shall not be assignable by either party without the
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
8. Amendments.
No provision of this Agreement may be changed, waived, discharged or
terminated, except by an instrument in writing signed by the parties hereto.
9. Certain Records.
The Service Company shall maintain customary records in connection
with its duties as specified in this Agreement. Any records required to be
maintained and preserved pursuant to Rules 31a-1 and 31a-2 under the 1940 Act
which are prepared or maintained by the Service Company shall be the property of
the Company and will be made available to or surrendered promptly to BISYS upon
its request or to the Company upon its request.
In case of any request or demand for the inspection of such records
by another party, the Service Company shall notify BISYS and follow BISYS's
instructions as to permitting or refusing such inspection; provided that the
Service Company may exhibit such records to any person in any case where it is
advised by counsel to the Company that the Company may be held liable for
failure of the Service Company to do so, or the Service Company could be held in
contempt for failure to do so.
4
10. Definitions of Certain Terms.
The terms "interested person" and "affiliated person," when used in
this Agreement, shall have the respective meanings specified in the 1940 Act and
the rules and regulations thereunder, subject to such exemptions as may be
granted by the Commission.
11. Notice.
Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
following address: if to BISYS, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
ATTENTION: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; and if to the
Service Company, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ATTENTION: ▇▇▇▇▇▇
▇▇▇▇▇; or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section.
12. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of Ohio, subject to any applicable provisions of the 1940 Act.
13. Multiple Originals.
This Agreement may be executed in two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
14. Confidentiality/Privacy.
The Service Company agrees on behalf of itself and its employees to
treat confidentially and as the proprietary information of the Company, all
records and other information relative to the Company and prior, present or
potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except, after prior notification to and approval in writing by BISYS or the
Company, which approval shall not be unreasonably withheld.
The Service Company acknowledges that nonpublic personal financial
information relating to consumers or customers of the Company provided by, or at
the direction of the Company to BISYS, or collected or retained by BISYS to
perform its duties as administrator of the Funds shall be considered
confidential information. Service Company shall not give, sell or in any way
transfer such confidential information to any person or entity, except at the
direction of BISYS or as required or
5
permitted by law. Service Company shall have in place and maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Company. The Service Company acknowledges and agrees to comply with the
Company's Statement of its privacy policies and practices as required by
Securities and Exchange Commission Regulation S-P.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS FUND SERVICES OHIO, INC., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Title: President
---------------
FIRST FINANCIAL CAPITAL ADVISORS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------
6
SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES LIMITED PARTNERSHIP
AND
FIRST FINANCIAL CAPITAL ADVISORS LLC
SERVICES
(a) Furnish statistical and research data to the Portfolios;
(b) Prepare reports and other informational materials regarding the
Portfolios, including prospectuses, proxies and other shareholder
communications;
(c) Develop and implement procedures for monitoring compliance with
regulatory requirements and compliance with the Portfolios'
investment objectives, policies and restrictions as established by
the Board of Trustees of the Company;
(d) Review and arrange for payment of expenses for the Portfolios;
(e) Provide communication and coordination services with regard to the
Portfolios' investment advisors, transfer agent, custodian,
distributor, and other service organizations that render
distribution, recordkeeping or shareholder communication services;
(f) Review and provide advice to the distributor, the Portfolios and
investment advisors regarding sales literature and marketing
plans for the Portfolios;
(g) Provide information to the distributor's personnel concerning
performance and administration of the Portfolios;
(h) Provide marketing support with respect to sales of the Portfolios
through financial intermediaries;
(i) Participate in seminars, meetings and conferences designed to
present information concerning the Portfolios;
(j) Assist in the development of additional Portfolios; and
(k) Provide reports to the Board of Trustees of the Company.
A-1
SCHEDULE B
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES LIMITED PARTNERSHIP
AND
FIRST FINANCIAL CAPITAL ADVISORS LLC
SUB-ADMINISTRATION FEES
BISYS shall pay the Service Company the following sub-administration fees:
On annual basis, for each Portfolio, the fee shall be the difference, if
any, between (a) the amount that BISYS receives from the Company as omnibus fees
under the Omnibus Fee Agreement between the Company, BISYS and BISYS Fund
Services Ohio, Inc. dated as of May 13, 2002 (the "Omnibus Fee Agreement") and
(b) whichever is larger, of the amounts determined under (i) and (ii) below:
(i) The minimum annual omnibus fee BISYS is entitled to retain for a
Portfolio as provided under the Omnibus Fee Agreement.
(ii) The sum of:
(x) a fee to be retained by BISYS from the Portfolio, determined
based upon the Portfolio's net assets relative to the net assets of
all Portfolios of the Company, according to the following annual
rates applicable to the aggregate average net assets of all
Portfolios of the Company:
0.14% (14 basis points) of average aggregate net assets up to $500
million;
0.125% (12.5 basis points) of average aggregate net assets from $500
- $700 million;
0.1125% (11.25 basis points) of average aggregate net assets from
$700 - $900 million;
0.10% (10 basis points) of average aggregate net assets from $900
million - $1 billion;
0.09% (9 basis points) of average aggregate net assets over $1
billion; plus
(y) a shareholder account charge of $25 for each shareholder account
in excess of 100 accounts in the relevant Portfolio, as reflected on
BISYS's transfer agent system at any time during the relevant annual
period.
B-1
