Exhibit 22(h)(3)
SUB-ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of the 1st day of October, 2003 by and between
BISYS FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation having its
principal office at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx, and FIRST NATIONAL BANK
OF OMAHA (the "Service Company"), a national bank organized under the laws of
the United States having an office at 0000 Xxxxx Xxxxxx, Xxxxx, XX 00000.
WHEREAS, BISYS has entered into an Administration Agreement dated October
1, 2003 (the "Administration Agreement"), with First Focus Funds, Inc. (the
"Company"), a Nebraska corporation 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 "Fund" and collectively as the
"Funds");
WHEREAS, BISYS desires to retain the Service Company to assist it in
performing certain administration services for the Company and the Funds; 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 Funds 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 Directors of the
Company who are affiliated persons of the Service Company or
any affiliated company of the Service Company.
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(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.
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 Directors 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.
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 3, 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.
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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 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 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
Directors, 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 above
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.
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In addition to the foregoing, this Agreement may be terminated for
"cause," upon thirty (30) day's written notice. For these purposes, "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;
(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 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 Investment
Company Act of 1940, as amended (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.
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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 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000,
Attention: President and if to the Service Company, at First National Bank of
Omaha, Wealth Management Group; 0000 Xxxxx Xxxxxx, Xxxxx, XX 00000 Attention:
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.
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 the Service Company, or collected or
retained by BISYS or the Service Company to perform their respective duties as
administrator and sub-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
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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.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: President
FIRST NATIONAL BANK OF OMAHA
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
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SCHEDULE A
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND
FIRST NATIONAL BANK OF OMAHA
SERVICES
The Sub-Administrator will perform the following duties:
(i) assist the administrator in the supervision of all aspects of the
operations of the Funds except those performed by the distributor
for the Funds under its Distribution Agreement, the transfer agent
for the Funds under its Transfer Agency Agreement, the fund
accountant under its Fund Accounting Agreement, and the investment
adviser for the Funds under its Investment Advisory Agreement;
(ii) serve as on-site liaison between the Company and the other service
providers;
(iii) furnish statistical and research data;
(iv) assist the Administrator in the preparation of compliance filings
pursuant to state securities laws with the advice of the Company's
counsel and coordinate with the transfer agent to monitor the sale
of the Funds' shares;
(v) assist the Administrator to the extent requested by the
Administrator in the preparation, mailing, and filing of the Funds'
Annual and Semi-Annual Reports to Shareholders and Registration
Statement;
(vi) assist the Administrator in the preparation of Proxy Statements and
related documents with the advice of Company counsel and coordinate
the distribution of such documents; and
(vii) provide Board meeting support, including the preparation of
documents related thereto.
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SCHEDULE B
TO THE SUB-ADMINISTRATION AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND
FIRST NATIONAL BANK OF OMAHA
Sub-Administration Fees
As compensation for its services hereunder, BISYS shall pay the Service Company
a sub-administration fee at the annual rate of seven (7) basis points (0.07%) on
the average daily net assets of all Funds.
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