Exhibit (h)(4)
FUND ACCOUNTING 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. (the "Fund Accountant"), a corporation organized under the
laws of the State of Ohio and having its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company and the Fund Accountant entered into a Fund Accounting
Agreement dated May 13, 2002 (the "2002 Agreement"), whereby the Fund Accountant
agreed to perform administration services for the Company, which has continued
in effect through the date hereof;
WHEREAS, the Company desires that the Fund Accountant continue to perform
certain fund accounting services for each investment portfolio of the Company,
all as now or hereafter may be established from time to time (individually
referred to herein as the "Fund" and collectively as the "Funds"); and
WHEREAS, the Fund Accountant 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 as the Fund Accountant.
(a) Maintenance of Books and Records. The Fund Accountant will keep
and maintain the following books and records of each Fund
pursuant to Rule 31a-1 under the Investment Company Act of 1940
(the "Rule"):
(i) Journals containing an itemized daily record in detail of
all purchases and sales of securities, all receipts and
disbursements of cash and all other debits and credits, as
required by subsection (b)(1) of the Rule;
(ii) General and auxiliary ledgers reflecting all asset,
liability, reserve, capital, income and expense accounts,
including interest accrued and interest received, as
required by subsection (b)(2)(i) of the Rule;
(iii) Separate ledger accounts required by subsection (b)(2)(ii)
and (iii) of the Rule; and
(iv) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of
the Rule.
(v) Maintain the books or records pertaining to (i) fair value
prices and/or adjustment factors provided by Fair Value
Information Vendors (described in Section 1(b)(ii)), and
(ii) market prices for securities that are valued using fair
value information provided by Fair Value Information
Vendors.
(b) Performance of Daily Accounting Services. In addition to the
maintenance of the books and records specified above, the Fund
Accountant shall perform the following accounting services daily
for each Fund:
(i) Calculate the net asset value per share ("NAV") of each
class of shares offered by each Fund in accordance with the
relevant provisions of the applicable Prospectus of each
Fund and applicable regulations under the 1940 Act;
(ii) In each calculation of NAV, apply securities pricing
information as required or authorized under the terms of the
valuation policies and procedures of the Company ("Valuation
Procedures"), including (A) pricing information from
independent pricing services, with respect to securities for
which market quotations are readily available, and (B) if
applicable to a particular Fund or Funds, fair value pricing
information or adjustment factors from independent fair
value pricing services or other vendors approved by the
Company's Board of Trustees (hereafter referred to as the
"Trustees" (collectively, "Fair Value Information Vendors")
with respect to securities for which market quotations are
not readily available, for which a significant event has
occurred following the close of the relevant market but
prior to the Fund's pricing time, or which are otherwise
required to be made subject to a fair value determination,
as set forth under the Valuation Procedures.
(iii) Verify and reconcile with the Funds' custodian all daily
trade activity;
(iv) Compute, as appropriate, each Fund's net income and capital
gains, dividend payables, dividend factors, 7-day yields,
7-day effective yields, 30-day yields, and weighted average
portfolio maturity;
(v) Review daily the net asset value calculation and dividend
factor (if any) for each Fund prior to release to
shareholders, check and confirm the net asset values and
dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ;
(vi) Report to the Company the daily market pricing of securities
in any money market Funds, with the comparison to the
amortized cost
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basis;
(vii) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested by
the Company;
(ix) Update fund accounting system to reflect rate changes, as
received from a Fund's investment adviser, on variable
interest rate instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Fund according to instructions
received from the Company's Administrator;
(xii) Determine the outstanding receivables and payables for all
(1) security trades, (2) Fund share transactions and (3)
income and expense accounts;
(xiii) Provide accounting reports in connection with the
Company's regular annual audit and other audits and
examinations by regulatory agencies; and
(xiv) Provide such periodic reports as the parties shall agree
upon, as set forth in a separate schedule.
(c) Special Reports and Services.
(i) The Fund Accountant may provide additional special reports
upon the request of the Company or a Fund's investment
adviser, which may result in an additional charge, the
amount of which shall be agreed upon between the parties.
(ii) The Fund Accountant may provide such other similar services
with respect to a Fund as may be reasonably requested by the
Company, which may result in an additional charge, the
amount of which shall be agreed upon between the parties.
(iii) The Fund Accountant will coordinate the preparation of
reports that are prepared or provided by Fair Value
Information Services which help the Company to monitor and
evaluate its use of fair value pricing information under its
Valuation Procedures.
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(d) Additional Accounting Services. The Fund Accountant shall also
perform the following additional accounting services for each
Fund:
(i) Provide monthly a download (and hard copy thereof) of the
financial statements described below, upon request of the
Company. The download will include the following unaudited
items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets, and
Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise
tax returns;
(B) the Company's semi-annual reports with the Securities
and Exchange Commission ("SEC") on Form N-SAR;
(C) the Company's annual, semi-annual and quarterly (if
any) shareholder reports;
(D) registration statements on Form N-1A and other filings
relating to the registration of shares;
(E) the Administrator's monitoring of the Company's status
as a regulated investment company under Subchapter M of
the Internal Revenue Code, as amended;
(F) annual audit by the Company's auditors; and
(G) examinations performed by the SEC.
2. Subcontracting.
The Fund Accountant may, at its expense, subcontract with any entity
or person concerning the provision of the services contemplated hereunder;
provided, however, that the Fund Accountant shall not be relieved of any of its
obligations under this Agreement by the appointment of such subcontractor and
provided further, that the Fund Accountant shall be responsible, to the extent
provided in Section 7 hereof, for all acts of such subcontractor as if such acts
were its own.
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3. Compensation.
The Company shall pay the Fund Accountant for the services to be
provided by the Fund Accountant under this Agreement in accordance with, and in
the manner set forth in the Omnibus Fee Agreement by and between the Company and
the Fund Accountant, dated as of [________, 2005] (the "Fee Agreement").
4. Reimbursement of Expenses and Miscellaneous Service Fees.
(A) In addition to paying the Fund Accountant the fees described in
the Fee Agreement, the Company agrees to reimburse the Fund Accountant
for its 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 the Fund Accountant in delivering materials to and from
the Company;
(b) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by the Fund
Accountant in communication with the Company, the Company's
investment adviser or custodian, dealers or others as
required for the Fund Accountant to perform the services to
be provided hereunder;
(c) The cost of microfilm or microfiche of records or other
materials;
(d) All systems-related expenses associated with the provision
of special reports and services pursuant to Section 1(c)
herein;
(e) Any expenses the Fund Accountant shall incur at the written
direction of an officer of the Company thereunto duly
authorized; and
(f) Any additional expenses reasonably incurred by the Fund
Accountant in the performance of its duties and obligations
under this Agreement.
(B) In addition, the Fund Accountant shall be entitled to receive the
following fees:
(a) Systems development fees billed at an hourly rate of $150
per hour, as approved by the Company;
(b) Ad hoc reporting fees billed at an agreed upon rate.
(C) In addition:
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(a) The Company shall reimburse the Fund Accountant for the
actual costs incurred by the Fund Accountant to Fair Value
Information Vendors with respect to the provision of fair
value pricing information to the Fund Accountant for use in
valuing the portfolio holdings of a specific Fund or Funds
that the Company designates as being subject to fair value
determinations and for which Fair Value Support Services are
to be provided by the Fund Accountant hereunder (such costs
shall be incurred at the discounted group rate made
available to the Fund Accountant clients, if applicable);
(B) The Company shall pay to the Fund Accountant a charge for
the pricing information obtained with respect each of the
securities held in the portfolio of each Fund, which charge
shall not exceed the charge that would be incurred if the
Fund were to obtain the information directly from the
relevant vendor or vendors; and
(c) The Company shall pay the annual services fee indicated in
the Fee Agreement for each Fund that the Company designates
as being subject to the fair value support services to be
provided by the Fund Accountant.
5. Effective Date.
This Agreement shall become effective with respect to a Fund as of the
date first written above (or, if a particular Fund is not in existence on that
date, on the date such Fund commences operation) (the "Effective Date").
6. 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 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 "cause," as defined below, upon the provision of sixty (60)
days advance written notice by the party alleging cause. Written notice of
nonrenewal must be provided at least sixty (60) days prior to the end of the
Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or
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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 the Fund Accountant, with the
written consent of the Company, in fact continues to perform any one or more of
the services contemplated by this Agreement or any schedule or exhibit hereto,
the provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect.
Compensation due the Fund Accountant and unpaid by the Company upon such
termination shall be immediately due and payable upon and notwithstanding such
termination. The Fund Accountant shall be entitled to collect from the Company,
in addition to the compensation described the Fee Agreement and Section 4
hereof, the amount of all of the Fund Accountant's reasonable cash disbursements
for services in connection with the Fund Accountant's activities in effecting
such termination, including without limitation, the delivery to the Company
and/or its designees of the Company's property, records, instruments and
documents.
If, for any reason other than nonrenewal, mutual agreement of the
parties or "cause," as defined above, the Fund Accountant is replaced as fund
accountant, or if a third party is added to perform all or a part of the
services provided by the Fund Accountant under this Agreement (excluding any
sub-accountant appointed by the Fund Accountant as provided in Section 2
hereof), then the Company shall make a one-time cash payment, in consideration
of the fee structure and services to be provided under this Agreement, and not
as a penalty, to the Fund Accountant equal to the balance due the Fund
Accountant for the remainder of the then-current term of this Agreement,
assuming for purposes of calculation of the payment that such balance shall be
based upon the average amount of the Company's assets for the twelve months
prior to the date the Fund Accountant 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 the
Fund Accountant is not retained to provide fund accounting services consistent
with this Agreement including the number of Funds 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 the Fund Accountant is replaced or a third party is
added.
The parties further acknowledge and agree that, in the event the Fund
Accountant is replaced, or a third party is added, as set forth above, (i) a
determination of actual damages incurred by the Fund Accountant would be
extremely difficult, and (ii) the liquidated damages provision
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contained herein is intended to adequately compensate the Fund Accountant for
damages incurred and is not intended to constitute any form of penalty.
7. Indemnification.
The Company agrees to indemnify and hold harmless the Fund Accountant,
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 the
Fund Accountant' performance of services under this Agreement or based, if
applicable, upon the Fund Accountant' reasonable reliance on information,
records, instructions or requests pertaining to services hereunder, that are
given or made to the Fund Accountant by the Company, the investment adviser, or
other authorized agents of the Company with which the Fund Accountant must
interface in providing services; provided that this indemnification shall not
apply to actions or omissions of the Fund Accountant involving bad faith,
willful misfeasance, negligence or 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. The Fund Accountant shall give
the Company written notice of and reasonable opportunity to defend against said
claim in its own name or in the name of the Fund Accountant.
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
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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.
8. Standard of Care; Uncontrollable Events; Limitation of Liability.
The Fund Accountant 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 bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties. The duties of the Fund Accountant shall be confined to those
expressly set forth herein, and no implied duties are assumed by or may be
asserted against the Fund Accountant hereunder.
The Fund Accountant 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, the Fund Accountant 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, the Fund Accountant 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 the Fund
Accountant' 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, the Fund Accountant
shall follow applicable procedures in its disaster recovery and business
continuity plan and use all commercially reasonable efforts to minimize any
service interruption.
The Fund Accountant 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 the Fund Accountant
relating to the services provided by the Fund Accountant under this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
the Fund Accountant, 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 REVENUES
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.
9. Record Retention and Confidentiality.
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The Fund Accountant shall keep and maintain on behalf of the Company
all books and records which the Company and the Fund Accountant 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. The Fund Accountant 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 at reasonable times and otherwise to keep confidential all books and
records and other information relative to the Company and its shareholders;
except when requested to divulge such information by duly-constituted
authorities or court process; provided that the Fund Accountant may exhibit such
records in any case where (i) disclosure is required by law, (ii) the Fund
Accountant is advised by counsel that it may incur liability for failure to make
a disclosure, (iii) the Fund Accountant is requested to divulge such information
by duly-constituted authorities or court process, or (iv) the Fund Accountant is
requested to make a disclosure by the Company.
10. Reports.
The Fund Accountant 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 and at such times as are prescribed pursuant to the
terms and the conditions of this Agreement to be provided or completed by the
Fund Accountant, or as subsequently agreed upon by the parties pursuant to an
amendment hereto. 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 after conducting a diligent examination, are not so reported promptly,
a report will for all purposes be accepted by and binding upon the Company and
any other recipient, and the Fund Accountant shall have no liability for errors
or discrepancies therein and shall have no further responsibility with respect
to such report.
11. Rights of Ownership.
All computer programs and procedures developed to perform services
required to be provided by the Fund Accountant under this Agreement are the
property of the Fund Accountant. 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.
12. Return of Records.
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The Fund Accountant may at its option at any time, and shall promptly
upon the Company's demand, turn over to the Company and cease to retain the Fund
Accountant's files, records and documents created and maintained by the Fund
Accountant pursuant to this Agreement which are no longer needed by the Fund
Accountant 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 the Fund Accountant 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.
13. Representations of the Company.
The Company certifies to the Fund Accountant that: (1) as of the close
of business on the Effective Date, each Fund that is in existence as of the
Effective Date has authorized unlimited shares, and (2) 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.
14. Representations of the Fund Accountant.
The Fund Accountant represents and warrants that: (1) the various
procedures and systems which the Fund Accountant has implemented with regard to
safeguarding from loss or damage attributable to fire, theft, or any other cause
the records, and other data of the Company and the Fund Accountant's 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 (2) this Agreement has been duly authorized by the Fund
Accountant and, when executed and delivered by the Fund Accountant, will
constitute a legal, valid and binding obligation of the Fund Accountant,
enforceable against the Fund Accountant 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.
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 GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
15. Insurance.
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The Fund Accountant 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. The Fund Accountant shall notify the
Company should any of its insurance coverage be canceled or materially reduced.
Such notification shall include the date of change and the reasons therefor. The
Fund Accountant 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 the Fund Accountant under
its insurance coverage, if such claims materially impair or threaten to
materially impair the adequacy of the Fund Accountant's coverage.
16. Information to be Furnished by the Company and Funds.
The Company has furnished to the Fund Accountant the following:
(a) Copies of the Declaration of Company of the Company and of any
amendments thereto, certified by the proper official of the state
in which such document has been filed.
(b) Copies of the following documents:
(i) The Company's Bylaws and any amendments thereto; and
(ii) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of the Fund
Accountant to act as the fund accountant to the Company,
authorization of a specified officer of the Company to
execute and deliver this Agreement and authorization for
specified officers of the Company to instruct the Fund
Accountant thereunder.
(c) A list of all the officers of the Company, together with specimen
signatures of those officers who are authorized to instruct the
Fund Accountant in all matters.
(d) Two copies of the Prospectuses and Statements of Additional
Information for each Fund.
(e) A copy of the Company's Valuation Procedures and any related
policies or procedures applicable to the services hereunder.
17. Information Furnished by the Fund Accountant.
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(a) The Fund Accountant has furnished to the Company the following:
(i) The Fund Accountant's Articles of Incorporation; and
(ii) The Fund Accountant's Bylaws and any amendments thereto.
(b) The Fund Accountant shall, upon request, furnish certified copies
of corporate actions covering the following matters:
(i) Approval of this Agreement, and authorization of a specified
officer of the Fund Accountant to execute and deliver this
Agreement; and
(ii) Authorization of the Fund Accountant to act as fund
accountant for the Company and to provide accounting
services for the Company.
18. Amendments to Documents.
The Company shall furnish the Fund Accountant written copies of any
material amendments to, or material changes in, any of the items referred to in
Section 16 hereof forthwith upon such amendments or changes becoming effective.
In addition, the Company agrees that no amendments will be made to the
Prospectuses or Statements of Additional Information or Valuation Procedures and
related policies and procedures of the Company which might have the effect of
changing the procedures employed by the Fund Accountant in providing the
services agreed to hereunder or which amendment might affect the duties of the
Fund Accountant hereunder unless the Company first obtains the Fund Accountant's
approval of such amendments or changes, which approval shall not be unreasonably
withheld.
19. Legal Advice; Reliance on Prospectus; Certain Instructions.
The Fund Accountant may apply to the Company at any time for
instructions and may consult with counsel for the Company and with accountants
and other experts with respect to any matter arising in connection with the Fund
Accountant's duties, and the Fund Accountant shall not be liable nor accountable
for any action taken or omitted by it in good faith in accordance with such
instruction or with the opinion of such counsel, accountants or other experts.
The Fund Accountant shall notify the Company at any time the Fund Accountant
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of the Fund Accountant or any affiliated companies) with regard
to the Fund Accountant' responsibilities and duties pursuant to this Agreement.
After so notifying the Company, the Fund Accountant, 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 unless relating to a matter
involving the Fund Accountant' willful misfeasance, bad faith, negligence or
reckless disregard of the Fund Accountant's responsibilities and duties
hereunder, and the Fund Accountant 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
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advice.
As to the services to be provided hereunder, the Fund Accountant may
rely conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Company relating to the relevant Funds to the extent that
such services are described therein, as well as the minutes of Board meetings
(if applicable) and other records of the Company unless the Fund Accountant
receives written instructions to the contrary in a timely manner from the
Company.
Also, the Fund Accountant shall be protected in acting upon any
document which it reasonably believes to be genuine and to have been signed or
presented by the proper person or persons. The Administrator will not be held to
have notice of any change of authority of any officers, employees or agents of
the Company until receipt of written notice thereof from the Company.
The Company has approved, or shall approve, each independent pricing
vendor and Fair Value Information Vendor to be used by the Fund Accountant in
rendering fund accounting services, including Fair Value Support Services
hereunder.
The Company hereby instructs and authorizes the Fund Accountant to
provide information pertaining to the Fund's portfolio to Fair Value Information
Vendors in connection with the fair value determinations made under the
Company's Valuation Procedures and other legitimate purposes related to the Fair
Value Support Services to be provided hereunder.
The Company understands and acknowledges that while the Fund
Accountant's services hereunder are intended to assist the Company and its Board
in its obligations to price and monitor pricing of Fund portfolios, the Fund
Accountant does not assume responsibility for the accuracy or appropriateness of
pricing information or methodologies, including any fair value pricing
information or adjustment factors. The Company retains its overall
responsibilities to (i) adopt policies and procedures to monitoring for
circumstances that may necessitate the use of fair value prices, (ii) establish
criteria for determining when market quotations are no longer reliable for a
particular portfolio security, (iii) determine a methodology or methodologies by
which the Company determines the current fair value of the portfolio security,
and (iv) regularly review the appropriateness and accuracy of the method used in
valuing securities and make any necessary adjustments.
20. Compliance with Law.
Except for the obligations of the Fund Accountant set forth in Section
9 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
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. The Fund Accountant shall have no
obligation to take cognizance of any laws relating to the sale of the Company's
shares. The Company represents and
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warrants that no shares of the Company will be offered to the public until the
Company's registration statement under the Securities Act and the 1940 Act has
been declared or becomes effective.
21. 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, at 00 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attn: General Counsel, along with a copy to First Financial
CapitalAdvisors LLC, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attn: Xxxxxx Xxxxx;
and if to the Fund Accountant, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, 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.
22. Privacy.
Nonpublic personal financial information relating to consumers or
customers of the Company provided by, or at the direction of the Company to Fund
Accountant, or collected or retained by Fun Accountant to perform its duties
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 Fund Accountant except at the direction of the Company or as
required or permitted by law. Fund Accountant shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of records and information relating to consumers or customers
of the Company. The Company represents to Fund Accountant that it has adopted a
Statement of its privacy policies and practices as required by the Commission's
Regulation S-P and agrees to provide Fund Accountant with a copy of that
statement annually.
23. Assignment.
This Agreement and the rights and duties hereunder shall not be
assignable with respect to a Fund by either of the parties hereto except by the
specific 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.
24. Governing Law and Matters Relating to the Company as a Massachusetts
Business Company.
This Agreement shall be governed by and provisions shall be construed
in accordance with the laws of the State of Ohio. 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
15
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.
25. Activities of the Fund Accountant.
The services of the Fund Accountant rendered to the Company hereunder
are not to be deemed to be exclusive. The Fund Accountant 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 Fund Accountant, as officers, employees or otherwise
and that partners, officers and employees of the Fund Accountant and its counsel
are or may be or become similarly interested in the Company, and that the Fund
Accountant may be or become interested in the Company as a shareholder or
otherwise
26. 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. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and the Fund Accountant 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 the Fund
Accountant) 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.
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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:
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Title:
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BISYS FUND SERVICES OHIO, INC.
By:
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Title:
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