Exhibit (h)(1)
MASTER SERVICES AGREEMENT
This Master Services Agreement ("Agreement") is made as of September 30,
2005, (the "Effective Date") between BISYS Fund Services Ohio, Inc. ("BISYS"),
an Ohio corporation having a place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000, and Giant 5 Funds Trust Company (the "Company"), a Delaware trust
having a place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, XX 00000.
WHEREAS, the Company desires that BISYS perform administration, fund
accounting, transfer agency and compliance services for the investment
portfolios of the Company listed on Schedule A to this Agreement, as well as
such additional investment portfolios as hereafter may be established by the
Company from time to time (collectively, the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the Company and BISYS hereby agree as follows:
1. Retention of BISYS.
The Company hereby retains BISYS to act as administrator, fund accountant
and transfer agent of the Company and the Funds, and to furnish the Company and
the Funds with administrative, fund accounting and transfer agency services as
set forth in Sections 2(a) through (c) below. BISYS will perform the services
upon the terms set forth in this Agreement and the schedules to this Agreement.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, except as otherwise expressly provided or authorized, shall have
no authority to act for or represent the Company or Funds in any way, and shall
not be deemed an agent of the Company or any Funds.
2. Services.
(a) Administration Services. BISYS shall perform the administrative
services set forth in Schedule B to this Agreement and, on behalf
of the Company, shall investigate, and conduct relations with,
custodians, depositories, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and persons in any other
capacity deemed to be necessary or desirable for the Company's
operations. BISYS shall provide the Board of Trustees of the
Company (the "Board") with such reports regarding the Fund's
investment performance as it may reasonably request, but shall
have no responsibility for supervising the performance by any
investment adviser or sub-adviser of its responsibilities. BISYS
shall perform such other administration services, and furnish
such reports, for the Company and each of the Funds that are
mutually
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agreed upon by the parties from time to time, for which the
Company will pay BISYS the amounts agreed upon between them.
(b) Fund Accounting Services. BISYS shall perform for the Company the
fund accounting services set forth in Schedule C to this
Agreement. BISYS shall also perform such special accounting
services, and furnish such reports, for the Company and the Funds
to the extent agreed upon by the parties from time to time, for
which the Company will pay BISYS the amounts agreed upon between
them.
(c) Transfer Agency Services. BISYS shall perform for the Company the
transfer agency services set forth in Schedule D to this
Agreement. BISYS also agrees to perform for the Company such
special transfer agency services, and furnish such reports, for
the Company and the Funds to the extent agreed upon by the
parties from time to time, for which the Company will pay BISYS
the amounts agreed upon between them.
(d) Compliance Services. BISYS shall perform for the Company the
compliance services set forth in Schedule E to this Agreement.
BISYS also agrees to perform for the Company such special
compliance services, and furnish such reports, for the Company
and the Funds to the extent agreed upon by the parties from time
to time, for which the Company will pay BISYS the amounts agreed
upon between them.
BISYS shall provide the Company with all necessary office space, equipment,
personnel and facilities (including facilities for shareholders' and Board
meetings) for handling the affairs of the Company and Funds and such other
services as BISYS shall, from time to time, reasonably determine to be necessary
to perform its obligations under this Agreement. In addition, at the request of
the Board, BISYS shall make reports to the Board concerning the performance of
its obligations hereunder.
BISYS shall perform such other services for the Company or the Funds that
are mutually agreed upon by the parties from time to time, for which the Company
will pay BISYS the amounts agreed upon between them, from time to time. Except
as explicitly set forth herein, BISYS shall only perform additional services as
are set forth in an amendment to this Agreement, in consideration of such fees
as the parties agree.
BISYS may use one or more third parties to perform some or all of its
obligations under this Agreement. BISYS shall be fully responsible for the acts
of such third parties and shall not be relieved of any of its responsibilities
hereunder by virtue of the use of such third parties.
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3. Allocation of Charges and Expenses.
BISYS shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
BISYS shall pay all compensation, if any, of officers and trustees of the
Company who are affiliated persons of BISYS or any affiliated entity of BISYS;
provided, however, that unless otherwise specifically provided, BISYS shall not
be obligated to pay the compensation of any employee or agent of the Company
(who is not a BISYS employee) retained by the Board to perform services on
behalf of the Company.
The Company assumes and shall pay or cause to be paid all other expenses of
the Company not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for Company 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 (as defined below), all expenses incurred
in connection with issuing and redeeming shares of beneficial interest in the
Funds ("Shares"), the cost 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 any affiliate of BISYS (fees for other "interested trustees" may be paid by
parties other than the Company), insurance, interest, brokerage costs,
litigation and other extraordinary or nonrecurring expenses, and all fees and
charges of investment advisers.
4. Fees and Expenses.
(a) 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, Schedule F to this Agreement. Fees for any
additional services to be provided by BISYS pursuant to an
amendment to any of Schedules B, C, D or E shall be subject to
mutual agreement at the time such amendment is proposed.
(b) In addition to paying BISYS the fees set forth in Schedule F, the
Company agrees to reimburse BISYS for all of its actual
out-of-pocket expenses reasonably incurred in providing services
hereunder, including without limitation:
(i) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred in
communication with the Company or the Company's investment
adviser or custodian, broker-dealers, shareholders or others
as required for BISYS to perform the services to be provided
hereunder;
(ii) The cost of microfilm or microfiche of records or other
electronic storage of Company records and other materials;
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(iii) All freight and other delivery and bonding charges incurred
in delivering materials to and from the Company, its
investment advisers and custodian;
(iv) All printing, production (including graphics support,
copying, and binding) and distribution expenses incurred in
relation to Board meeting materials;
(v) Check and payment processing fees;
(vi) Fulfillment;
(vii) XXX custody and other related fees;
(viii) NSCC and related costs;
(ix) Sales taxes;
(x) Costs of tax forms;
(xi) Costs of shareholder correspondence;
(xii) Costs of tax data services;
(xiii) Costs of rating agency services;
(xiv) All out of pocket costs incurred in connection with BISYS'
provision (if applicable, under Section 23) of Company
officers and in connection with compliance services,
including, without limitation, travel and lodging expenses
incurred by officers and employees of BISYS in connection
with attendance at Board meetings and any other meetings for
which such attendance is requested or agreed upon by the
parties; and
(xv) Any expenses incurred at the written direction of an officer
of the Company; provided however, that such officer is not
an officer or employee of BISYS or its affiliates.
(c) In addition, the Company will pay BISYS the following
miscellaneous fees and charges:
(i) Ad hoc reporting fees billed, when mutually agreed upon,
according to applicable rate schedules;
(ii) Fees for pricing information used in connection with pricing
the securities and other investments of each Fund, provided
that the Fund shall not be charged an amount
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greater than the amount the Fund would be charged if it
obtained the information directly from the relevant vendor
or vendors, including costs incurred by BISYS to Fair Value
Information Vendors (as defined in Schedule C) with respect
to the provision of fair value pricing information to BISYS
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 services are to be
provided by BISYS hereunder (such costs shall be incurred at
the discounted group rate made available to BISYS clients,
if applicable);
(iii) A fee for managing and overseeing the report, print and
mail functions performed by BISYS using third-party vendors;
not to exceed $.04 per image for statements and $.03 per
image for confirmations; fees for programming in connection
with creating or changing the forms of statements, billed at
a mutually agreed upon rate; and costs for postage,
couriers, stock computer paper, computer disks, 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 for the performance of
the services to be provided hereunder;
(iv) Fees and expenses associated with providing the "AML
Services," as defined in Section 23, and as set forth in
further detail on Schedule F;
(v) System development fees, billed at a mutually agreed upon
rate, and all systems-related expenses, as agreed upon in
advance, associated with the provision of special reports
and services;
(vi) Fees for development of any custom interfaces, billed at a
mutually agreed upon rate; and
(vii) 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.
All rights of compensation under this Agreement for services performed and
for expense reimbursement and for payment of miscellaneous fees and charges
shall survive the termination of this Agreement.
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5. Effective Date.
This Agreement shall become effective as of the Effective Date; provided,
however, that BISYS will not xxxx the Company for services provided under this
Agreement until the first Fund begins trading.
6. Term; Liquidated Damages.
This Agreement shall continue in effect for an initial term of 3 years from
the Effective Date (the "Initial Term"). Thereafter, unless otherwise terminated
pursuant to this Agreement, this Agreement shall be renewed automatically for
successive one year periods ("Rollover Periods"). This Agreement may be
terminated only (i) by provision of a written notice of non-renewal provided at
least 90 days prior to the end of the Initial Term or any Rollover Period (which
notice of non-renewal will cause this Agreement to terminate as of the end of
the Initial Term or such Rollover Period, as applicable), (ii) by mutual
agreement of the parties, or (iii) for "cause," as defined below, upon the
provision of 60 days advance written notice by the party alleging cause.
For purposes of this Section 6, "cause" shall mean (a) a material breach of
this Agreement that has not been remedied within 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.
Notwithstanding the foregoing termination provisions, following any such
termination, in the event that BISYS in fact continues to perform any one or
more of the services contemplated by this Agreement (or any schedule or exhibit
to this Agreement) with the consent of the Company, the provisions of this
Agreement, including without limitation the provisions dealing with compensation
and 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 expenses provided in Sections 3 and 4 of this Agreement, the amount
of all of BISYS' cash disbursements in connection with BISYS' activities in
effecting such termination, including without limitation, the delivery to the
Company, its investment adviser and/or other parties of the Company's property,
records, instruments and documents.
If, for any reason other than (i) non-renewal, (ii) mutual agreement of the
parties or (iii) "cause", the Company terminates this Agreement, or the Company
terminates BISYS' services, or BISYS is replaced as service provider to the
Company, then the
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Company shall make a one-time cash payment to BISYS, representing liquidated
damages in consideration of the fee structure and services to be provided under
this Agreement, equal to the balance that would be due BISYS for its services
hereunder during the balance of the Initial Term or any applicable Rollover
Period, as the case may be, assuming for purposes of the calculation of the
one-time payment that the fees that would be earned by BISYS for each month
would be based upon the average fees payable to BISYS monthly during the 12
months prior to the date of the event that triggers such payment.
In the event that, before the expiration of the then-current term of this
Agreement, the Company or any Fund is, in part or in whole, liquidated,
dissolved, merged into a third party, acquired by a third party, or involved in
any other transaction that materially reduces the assets and/or accounts
serviced by BISYS pursuant to this Agreement, the liquidated damages provision
set forth above shall be applicable.
If one of the events described above is partial (e.g., a termination of
BISYS as provider of some but not all of the services set forth in this
Agreement, or a liquidation of some but not all of the Funds), the liquidated
damages amount payable by the Company shall be appropriately adjusted on a pro
rata basis.
The liquidated damages payment referenced above shall be due and payable no
later than the day before the event that triggers the payment, where
practicable, and, in any event, no later than the day of the event that triggers
the payment. With respect to the payment of BISYS' cash disbursements in
connection with BISYS' activities in effecting a termination of this Agreement:
(a) BISYS will provide the Company with an estimate of such disbursements before
the earliest conversion or termination date, (b) the Company shall pay such
estimated amount no later than the earliest conversion or termination date, and
(c) BISYS will provide the Company after the applicable conversion or
termination date with the actual amount of such disbursements, and if the actual
amount is different than the estimated amount, BISYS or the Company, as
appropriate, will pay to the other party the difference between such amounts.
The parties further acknowledge and agree that, upon the occurrence of any
of the events described above: (i) a determination of actual damages incurred by
BISYS would be extremely difficult, and (ii) the liquidated damages payment
described above is intended to adequately compensate BISYS for damages incurred
and is not intended to constitute any form of penalty.
7. Standard of Care; Uncontrollable Events.
BISYS shall use reasonable professional diligence in the performance of
services 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 in
this Agreement, and no implied duties are assumed by or may be asserted against
BISYS under this Agreement.
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Notwithstanding 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 BISYS' control.
Events beyond BISYS' control include, without limitation, force majeure events,
such as 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 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 request, copies of reports rendered by independent auditors on the
internal controls and procedures of BISYS relating to the services provided by
BISYS under this Agreement.
8. Legal Advice.
BISYS may notify the Company if BISYS reasonably determines that it is in
need of the advice of counsel to the Company with regard to BISYS'
responsibilities and duties pursuant to this Agreement. BISYS may rely upon the
advice of counsel to the Company; however, this Agreement shall not obligate
counsel to the Company to render such advice. After so notifying the Company, if
BISYS does not obtain the advice of counsel to the Company within a reasonable
period of time, BISYS shall be entitled to seek, receive and act upon advice of
legal counsel of its reasonable choosing at the reasonable expense of the
Company unless relating to a matter involving BISYS' willful misfeasance, bad
faith, negligence or reckless disregard of BISYS' responsibilities and duties
hereunder. 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 legal advice rendered in accordance with this paragraph.
9. Instructions / Certain Procedures, etc.
BISYS shall be protected in acting upon any document that it reasonably
believes to be genuine and to have been signed or presented by the proper person
or persons. BISYS will not be held to have notice of any change of authority of
any officers, employees or agents of the Company until receipt of actual notice
thereof from the Company.
Subject to Section 23(b), 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), reasonably 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 Board or by the shareholder or shareholder's agent, as the
case may be.
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As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the relevant then-current Prospectus and Statement of
Additional Information of the Company, 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 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 reasonably assume that any special procedure which has been
approved by an executive officer of the Company (other than an officer or
employee of BISYS or its affiliates) does not conflict with or violate any
requirements of the Company's Charter, By-Laws or then-current Prospectus.
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, but will provide prompt notice to the Company of such
amendment. BISYS may apply the BISYS As-of Trading Policy whenever applicable,
unless BISYS agrees in writing to process 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 (other than an officer or
employee of BISYS or its affiliates) 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 16), 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
Company (other than an officer or employee of BISYS or its affiliates) and
delivered to BISYS (an "Exception"); provided that an Exception concerning the
requirements of the Company's AML Program shall also be authorized by the
Company's AML Compliance Officer (as defined in Section 16). 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.
The Company instructs and authorizes BISYS to provide information
pertaining to the Funds' investments to Fair Value Information Vendors (as
defined in Schedule C) in connection with the fair value determinations made
under the Company's Valuation Procedures (as defined in Schedule C) and other
legitimate purposes related to the
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services to be provided hereunder. The Company acknowledges that while BISYS'
services related to fair value pricing are intended to assist the Company and
its Board in its obligations to price and monitor pricing of Fund investments,
BISYS does not assume responsibility for the accuracy or appropriateness of
pricing information or methodologies, including any fair value pricing
information or adjustment factors.
10. Indemnification; Limitation of Liability.
The Company shall indemnify and hold harmless BISYS, and 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 BISYS'
performance of services under, and in compliance with, this Agreement or based,
if applicable, upon BISYS' reasonable reliance on information, records,
instructions or requests pertaining to services hereunder, that are given or
made to BISYS by the Company, the investment adviser, or 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
involving bad faith, willful misfeasance, negligence or reckless disregard by
BISYS of its obligations and duties.
BISYS shall indemnify, defend, and hold the Company, and its trustees,
officers, agents and nominees harmless from and against Losses resulting
directly and proximately from BISYS' willful misfeasance, bad faith or
negligence in the performance of, or the reckless disregard of, its duties or
obligations hereunder; provided that this indemnification shall not apply to
actions or omissions of the Company involving bad faith, willful misfeasance,
negligence or reckless disregard by the Company of its obligations and duties.
In order that the indemnification provisions contained herein shall apply,
if in any case a party may be asked to indemnify or hold the other party
harmless, the other party shall fully and promptly advise the indemnifying party
in writing of all pertinent facts concerning the situation in question. The
party seeking indemnification will use all reasonable care to identify and
notify the indemnifying party in writing 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 in at its own
expense or, if it so elects, to assume the defense of any claim or suit 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
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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 counsel retained by the indemnified
party and reasonably satisfactory to the indemnifying party. The indemnity and
defense provisions set forth herein shall survive the termination of this
Agreement.
The provisions of this Section 10 are subject to the provisions of Section
9 and Section 23(c) of 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, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUE, LOST
PROFITS, AND LOST OR DAMAGED DATA, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT
OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the Company all books and
records which are customary or which are required to be kept in connection with
BISYS' services pursuant to 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"). 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 at reasonable times or by
the Securities and Exchange Commission (the "Commission") promptly.
BISYS shall otherwise keep confidential all books and records relating to
the Fund and its shareholders, except when (i) disclosure is required by law,
(ii) BISYS is advised by counsel that it may incur liability for failure to make
a disclosure, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, (iv) 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 and a legal right to such information at such time
consistent with the Company's Charter, Prospectus and applicable law, or (v) as
requested or authorized by the Company (including pursuant to its policies and
procedures). BISYS shall provide the Company with reasonable advance notice of
disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent
reasonably practicable. The provisions of this Section 11 are subject to the
provisions of Section 23(b) (Anti-Money Laundering Provisions).
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12. Reports.
BISYS shall furnish to the Company and to its properly-authorized auditors,
investment advisers, examiners, distributors, broker-dealers, underwriters,
salesmen, insurance companies and others designated by the Company in writing,
such reports at such times as are prescribed pursuant to this Agreement (or
schedules to this Agreement), or as subsequently agreed upon by the parties
pursuant to an amendment to this Agreement (or schedules to this Agreement). The
Company agrees to examine each such report or copy provided to it promptly and
will report or cause to be reported to BISYS any errors or discrepancies
therein.
13. Rights of Ownership.
All computer programs, systems and procedures employed or developed by
BISYS, or on behalf of BISYS by system providers or vendors used by BISYS, to
perform services required to be provided by BISYS under this Agreement are the
property of BISYS. All records and other data maintained hereunder, excepting
such computer programs, systems and procedures, are the exclusive property of
the Company. All such records and other data which is the property of the
Company shall be furnished to the Company in appropriate form as soon as
practicable after termination of this Agreement for any reason.
14. Return of Records.
BISYS 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 shall be retained by BISYS, at the
expense of the Company, for six years from the date of creation. At the end of
such six-year period, such records and documents shall be turned over to the
Company unless the Company authorizes in writing the destruction of such records
and documents.
15. Bank Accounts.
BISYS is hereby granted such power and authority as may be necessary to
establish one or more bank accounts for the Company with such bank or banks as
are acceptable to the Company, as may be necessary or appropriate from time to
time in connection with the transfer agency services to be performed hereunder.
The Company shall be deemed to be the customer of such bank or banks for
purposes of such accounts. To the extent that the performance of such services
hereunder shall require BISYS to disburse amounts from such accounts in payment
of dividends, redemption proceeds or for other purposes hereunder, the Company
shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
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16. Representations and Warranties of the Company.
The Company represents and warrants to BISYS that:
(a) It is a corporation duly incorporated and validly existing under
the laws of the jurisdiction of its formation, and has full
capacity and authority to enter into this Agreement and to carry
out its obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to
carry out its business as currently conducted;
(c) It is in compliance in all material respects with all laws and
regulations applicable to its business and operations;
(d) 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 right and remedies of creditors and
secured parties;
(e) By virtue of the Charter, shares of each Fund which are redeemed
by the Company may be resold by the Company; and
(f) (i) The Company has adopted a written anti-money laundering
program, which has been provided to BISYS pursuant to Section 19
(the "AML Program"), and has appointed an officer of the Company
as the Company's anti-money laundering compliance officer ("AML
Compliance Officer"), (ii) the AML Program and the designation of
the AML Compliance Officer have been approved by the Board, (iii)
the delegation of certain services thereunder to BISYS, as
provided in Section 23, has been approved by the Board, and (iv)
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 21.
17. Representations and Warranties of BISYS.
BISYS represents and warrants to the Company that:
(a) It is a corporation duly incorporated and validly existing under
the laws of the state of Ohio, and has full capacity and
authority to enter into this Agreement and to carry out its
obligations hereunder;
13
(b) It has all necessary authorizations, licenses and permits to
carry out its business as currently conducted;
(c) It is, and shall continue to be, in compliance in all material
respects with all provisions of law applicable to it in
connection with its services hereunder, including Section 17A(c)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(d) The various procedures and systems which it 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' equipment, facilities, and other
property used in the performance of its obligations hereunder are
reasonable and adequate and that it will make such changes
therein from time to time as are reasonably required for the
secure performance of its obligations hereunder; and
(e) 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 GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
18. 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. Upon the request of the Company, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Company should its
insurance coverage with respect to professional liability or errors and
omissions coverage be reduced or canceled. Such notification shall include the
date of cancellation or reduction and the reasons therefore. BISYS shall notify
the Company promptly 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 promptly should the total outstanding claims made
by BISYS under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
14
19. Information to be Furnished by the Company and Funds.
The Company agrees to furnish to BISYS the following, upon BISYS' request,
each as amended and current as of the Effective Date:
(a) A copy of the Charter and any amendments thereto;
(b) A copy of the Company's By-laws and any amendments thereto;
(c) A copy of the resolutions of the Board regarding (i) 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 (ii) authorization of BISYS to act as
administrator, fund accountant and transfer agent for the
Company;
(d) A certified 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 adviser), together with specimen
signatures of those officers and other persons who (except as
otherwise provided herein to the contrary) shall be authorized to
instruct BISYS in all matters;
(e) Copies of each of the following documents employed by the
Company:
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Company or its
distributor with regard to their relationships and
transactions with shareholders of the Funds.
(f) A certificate as to shares of the Company authorized, issued, and
outstanding as of the Effective Date and as to receipt of full
consideration by the Company for all shares outstanding;
(g) A copy of the Company's written AML Program, including any
related policies and procedures;
(h) A copy of the disclosure controls and procedures of the Funds
("Fund DCPs") as contemplated in Item 22 of Schedule B; and
(i) The Company's Valuation Procedures as defined in Schedule C.
15
20. Information Furnished by BISYS.
BISYS agrees to furnish to the Company, upon its request, evidence of the
following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this Agreement;
(b) Authorization of BISYS to act as transfer agent, fund accountant
and administrator for the Company;
(c) The current BISYS As-of Trading Policy; and
(d) The current version of BISYS written polices and procedures with
respect to its provision on AML Services (as defined in Section
23 below).
Upon request, BISYS shall furnish a copy of the relevant provisions of its
internal policies on service of employees as executive officers of funds ("BISYS
Policies"), and any material amendments thereto, to the Company.
21. Amendments to Documents.
The Company will provide BISYS with advance notice of any material
amendments to the items set forth in Section 19. BISYS will not be responsible
for changing or conforming its services to any such amendments until BISYS has
reviewed and accepted responsibility for the relevant changes in services. BISYS
will consider such changes in good faith. In the event that any such amendment,
or change in laws applicable to the Company would require BISYS to make specific
changes to its service model, BISYS will use reasonable good faith efforts to
inform the Company of the changes that would be necessary, and set out the
estimated costs and estimated implementation timetable for any additional
services. The parties shall then in good faith agree to mutually agreeable terms
applicable to such additional service. BISYS shall furnish the Company with
written copies of any amendments to, or changes in, any of the items referred to
in this Section 21.
22. 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 19 and 21 of this
Agreement and the indemnification provisions of Section 10 hereof are applicable
to BISYS' 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 19 and 21 of
this Agreement, in the event the same relate to services provided by BISYS
hereunder, BISYS shall have no liability for failure to comply with or take any
action in conformity with such amendments or changes except as provided in
Section 21 or as otherwise agreed upon in writing.
16
23. Compliance with Laws.
(a) Prospectus and Public Offering. Except for information which is the
obligation of BISYS as set forth in Section 11 of this Agreement, and except as
provided in the services listed in the schedules to this Agreement which call
for information to be provided by BISYS for inclusion in the Prospectus, the
Company assumes full responsibility for the preparation, contents, and
distribution of each Prospectus of the Company in 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. Subject to its obligations herein with respect to "blue
sky" filings, BISYS shall have no obligation to take cognizance hereunder of
laws relating to the sale of the Funds' shares. The Company represents and
warrants that all shares of the Funds that are offered to the public are covered
by an effective registration statement under the 1933 Act and the 1940 Act.
(b) Anti-Money Laundering Provisions. 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 ("USA 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 D (the "AML Services") with respect to the shareholder accounts
maintained by BISYS pursuant to this Agreement, and BISYS agrees to the
foregoing delegation and agrees to perform such services in accordance with the
Company's AML Program for the fee set forth on Schedule E to this Agreement. 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. BISYS' obligations under this
delegation shall be subject to Sections 19 and 21, which require that the AML
Program and any material amendments thereto be submitted to BISYS for its review
and consent prior to adoption.
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 certain 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
17
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 Networked 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.
(c) Provision of Certifying Officers.
Subject to the provisions of this Section 23(c) and Section 23(d), BISYS
shall make BISYS employees available to the Company to serve, upon designation
as such by the Board, as the Chief Financial Officer of the Company or under
such other title to perform similar functions (each, a "Certifying Officer").
BISYS' obligation in this regard shall be met by providing an appropriately
qualified employee of BISYS (or its affiliates) who, in the exercise of his or
her duties to the Company, shall act in good faith and in a manner reasonably
believed to be in the best interests of the Company. BISYS shall select, and may
replace, the specific employee that it makes available to serve in the
designated capacities as a Certifying Officer, in BISYS' reasonable discretion,
taking into account each such person's responsibilities concerning, and
familiarity with, the Company's operations (but the description of any such
person as a Certifying Officer shall be subject to the approval of the Company).
The obligation of BISYS to provide an employee to serve in such capacity is
also subject to, and conditioned upon, the provisions of Item 20 of Schedule B
to this Agreement. Capitalized terms used but not defined in this Section 23(c)
have the respective meanings ascribed to them in Item 20 of Schedule B.
The Fund DCPs shall contain (or the Company and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification process,
and the parties shall comply with such procedures in all material respects.
Among other things, the procedures shall provide as follows:
The Company shall establish and maintain a Fund DCP Committee comprised of
persons including (at a minimum) the Company's Principal Executive Officer,
Chief Financial Officer ("CFO") and Chief Legal Officer (if any), at least one
BISYS representative other than the CFO or Chief Compliance Officer, (if such
officers are provided by BISYS), at least one representative of the investment
adviser, and such other individuals as may be necessary or appropriate for the
Fund DCP Committee to ensure
18
the cooperation of, and to oversee, each of the Company's agents that records,
processes, summarizes, or reports information contained in Company Reports (or
other information from which such information is derived), including BISYS and
the other service providers to the Company ("Other Service Providers"), such as
the investment adviser and custodian. In connection therewith, the Fund DCP
Committee shall assist the Certifying Officers by requiring that
sub-certifications acceptable to the Certifying Officers be provided by the
Other Service Providers.
The Fund DCP Committee shall meet prior to the filing date of each Report
to review the accuracy and completeness of the relevant Report and record its
considerations and conclusions in a written memorandum sufficient to support
conclusions pertaining to Fund DCPs as required by the instructions to Form
N-CSR and Form N-Q. In conducting its review and evaluations, the Fund DCP
Committee shall:
(i) establish a schedule to ensure that all required disclosures in
Form N-CSR and Form N-Q, including the financial statements, for the
Company are identified and prepared in a timeframe sufficient to allow
review;
(ii) review SAS 70 Reports pertaining to BISYS and Other Service
Providers, if applicable, or in the absence of any such reports, consider
the adequacy of the sub-certifications supplied by the service provider. In
cases where the SAS 70 Report is dated more than 90 days prior to the
issuance of a Report, the DCP Committee shall request a written
representation from the service provider regarding the continued
application and effectiveness of internal controls described in the report,
or descriptions of any changes in internal control structure, as of the
date of the representation;
(iii) consider whether there are any significant deficiencies or
material weaknesses in the design or operation of the Fund DCPs and
internal control over financial reporting that could adversely affect the
Company's ability to record, process, summarize, and report financial
information, and in the event that any such weaknesses or deficiencies are
identified, disclose them to the Company's Certifying Officers, the
Company's audit committee and its auditors;
(iv) consider whether, to the knowledge of each member of the Fund DCP
Committee, there has been or may have been any fraud, whether or not
material, and in the event that any such occurrence is identified, ensure
that this has been disclosed to the Certifying Officers, so that Certifying
Officers may inform the Company's audit committee and its auditors; and
(v) determine whether there was any change in internal control over
financial reporting that occurred during the Company's second fiscal
quarter of the period covered by the Report (for Reports on Form N-CSR) or
during the most recent fiscal quarter (for Reports on Form N-Q) that has
materially affected or is reasonably likely to materially affect, the
Company's internal control over financial reporting.
19
A Certifying Officer shall have the full discretion to decline to certify a
particular Report that fails to meet the standards set forth in the
Certification, and to report matters involving fraud or other failures to meet
the standards of applicable law to the audit committee of the Board.
(d) Additional Provisions Concerning Executive Officers.
It is mutually agreed and acknowledged by the parties that Certifying
Officers provided by BISYS under the provisions of this Section 23 will
constitute executive officers of the Company ("Executive Officers"). The
provisions of Section 23(c) are subject to the internal policies of BISYS
concerning the activities of its employees and their service as officers of
funds (the "BISYS Policies"), a copy of which shall be provided to the Company
upon request.
The Company's governing documents (including its Agreement and Charter and
By-Laws) and/or resolutions of the Board shall contain mandatory indemnification
provisions that are applicable to each Executive Officer and that are designed
and intended to have the effect of fully indemnifying him or her and holding him
or her harmless with respect to any claims, liabilities and costs arising out of
or relating to his or her service in good faith in a manner reasonably believed
to be in the best interests of the Company, except to the extent he or she would
otherwise be liable to the Company by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office.
The Company shall provide coverage to each Executive Officer under its
directors' and officers' liability policy that is appropriate to the Executive
Officer's role and title, and consistent with coverage applicable to other
officers holding positions of executive management.
In appropriate circumstances, each Executive Officer shall have the
discretion to resign from his or her position, in the event that he or she
reasonably determines that there has been or is likely to be (a) a violation of
the Xxxxxxxx-Xxxxx Act of 2002 ("Xxxxxxxx-Xxxxx"), Applicable AML Laws or other
Federal securities laws applicable to the Company (the "Applicable Securities
Laws") by the Company, or (b) a material deviation by the Company from the terms
of this Agreement governing the services of such Executive Officer, which (in
either case) is not primarily caused by the failure of such Executive Officer or
BISYS to meet obligations under applicable laws and this Agreement. In addition,
each Executive Officer shall have reasonable discretion to resign from his or
her position in the event that he or she determines that he or she has not
received sufficient cooperation from the Company or its Other Service Providers
to make an informed determination regarding any of the matters listed above.
Each Executive Officer may, and the Company shall, promptly notify BISYS of
any issue, matter or event that would be reasonably likely to result in any
claim by the Company, the Company's shareholders or any third party which
involves an allegation that any Executive Officer failed to exercise his or her
obligations to the Company in a
20
manner consistent with applicable laws (including but not limited to any claim
that a Report failed to meet the standards of Xxxxxxxx-Xxxxx and other
applicable laws).
Notwithstanding any provision of the Agreement that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that BISYS cannot ensure that the Company complies with Applicable
AML Laws, the Applicable Securities Laws or Xxxxxxxx-Xxxxx, and (b) whenever an
employee or agent of BISYS serves as an Executive Officer of the Company, as
long as such Executive Officer acts in good faith and in a manner reasonably
believed to be in the best interests of the Company (and would not otherwise be
liable to the Company by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of his or
her office), the Company shall indemnify the Executive Officer and BISYS and
hold the Executive Officer and BISYS harmless from any loss, liability, expenses
(including reasonable attorneys fees) and damages incurred by them arising out
of or resulting to the service of such employee/Executive Officer as an
Executive Officer of the Company.
24. Compliance Services. (a) With respect to BISYS' performance of the
compliance services set forth in Schedule E to this Agreement, the parties
mutually agree to coordinate and cooperate in connection with the creation and
implementation of written compliance polices and procedures (collectively, the
"Fund Compliance Program") which, in the aggregate, shall be deemed by the Board
to be reasonably designed to prevent the Company from violating the provisions
of Applicable Securities Laws, as required under Rule 38a-1 under the 1940 Act.
(b) The Company has furnished or shall promptly furnish to BISYS copies of the
Fund Compliance Program or the various policies and procedures of the Company
that pertain to compliance matters that are required to be covered by the Fund
Compliance Program, as amended and current as of the date provided to BISYS.
(c) The Company shall furnish BISYS written copies of any amendments to, or
changes in, the items referred to in Section 24(b) of this Agreement, promptly
after such amendments or changes become effective. In addition, the Company
agrees that no amendments will be made to the Fund Compliance Program 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' written approval of such
amendments or changes.
(d) BISYS may rely on all documents furnished to it by the Company and its
agents in connection with the compliance services to be provided under this
Agreement, including any amendments to or changes in any of the items to be
provided by the Company pursuant to this Section 24.
25. 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
21
address, or at such other address as such party may from time to time specify in
writing to the other party pursuant to this Section 25:
If to the Company:
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President
If to BISYS:
BISYS Fund Services Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: President
with a copy to:
The BISYS Group, Inc.
00 Xxxx Xxx., 00xx xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
26. Assignment.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties without the prior written consent of the other party;
provided, however, that either party may assign this Agreement to an affiliate
of such party without the need for such consent. This Section 26 shall not limit
or in any way affect BISYS' right to use a third party to perform obligations
pursuant to Section 2 of this Agreement. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties and their respective successors
and permitted assigns.
27. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to New York's conflicts of laws
principles, and the applicable provisions of the 1940 Act. To the extent that
the laws of the State of New York conflict with the applicable provisions of the
1940 Act, the applicable provisions of 1940 Act shall control.
28. 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
22
Shareholders of the Company and/or Fund 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/or Fund, and that BISYS may be or become interested in the
Company and/or Fund as a shareholder or otherwise.
29. 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 involved in servicing the Company except
at the direction of the Company or as required or permitted by law (including
Applicable AML Laws). BISYS represents, warrants and agrees that it has in place
and will 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 BISYS 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 BISYS with a copy of that
statement annually.
30. 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
as to the subject matter covered by this Agreement, and
supersedes all prior negotiations, understandings and agreements
bearing upon the subject matter covered herein.
(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.
(e) If any part, term or provision of this Agreement is held to be
legal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and
not be affected, and the rights and obligations of the parties
shall be construed and enforced as if this Agreement did not
contain such part, term or provision.
[Signature page follows.]
23
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed all as of the date first above written.
GIANT 5 FUNDS TRUST COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BISYS FUND SERVICES OHIO, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
24
SCHEDULE A
TO THE MASTER SERVICES AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC. AND GIANT 5 FUNDS TRUST COMPANY
FUNDS
Giant 5 Performance Fund
Giant 4 Index Fund
25
SCHEDULE B
TO THE MASTER SERVICES AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC. AND GIANT 5 FUNDS TRUST COMPANY
ADMINISTRATION SERVICES
1. Calculate contractual Fund expenses and make and control all disbursements
for the Funds, subject to review and approval of an officer of the Company
or other authorized person (designated on the list of authorized persons
approved by the Board), including administration of trustee and vendor fees
and compensation on behalf of the Company, and as appropriate;
2. Prepare, subject to review by counsel to the Company: (i) the annual update
to the Company's registration statement on Form N-1A, and (ii) supplements
to its prospectus and statement of additional information; and file any of
the foregoing with the Securities and Exchange Commission (the "SEC") upon
the request of the Company or counsel to the Company;
3. Prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares in the Fund as may be required
in order to comply with Federal and state securities laws) as may be
necessary or desirable to register the shares in the Fund ("Shares") with
state securities authorities, monitor the sale of Shares for compliance
with state securities laws, and file with the appropriate state securities
authorities the registration statements and reports for the Company and the
Shares and all amendments thereto, as may be necessary or convenient to
register and keep effective the registration of the Company and the Shares
with state securities authorities to enable the Company to make a
continuous offering of its Shares. State securities ("Blue Sky") exemption
services are made available at a standard fee which is earned by BISYS
based on savings obtained by the Company;
4. Coordinate and prepare, with the assistance and approval of the Funds'
investment adviser, counsel and officers, drafts of communications to
shareholders of record of the Funds ("Shareholders"), including the annual
report to Shareholders; prepare drafts of the certified semi-annual report
for each Fund; prepare and file the final certified versions thereof on
Form N-CSR; prepare and file the Fund's Form N-SAR; and file all required
notices pursuant to Rule 24f-2;
5. Coordinate the distribution of prospectuses, supplements, proxy materials
and reports to Shareholders; and coordinate the solicitation and tabulation
of proxies (including the annual meeting of Shareholders each year, if one
26
is held); and attend the Shareholder meetings and record the minutes of the
meetings;
6. Maintain, subject to review by counsel to the Company and the Chief
Compliance Officer to the Company, Fund policies and procedures;
7. Administer contracts on behalf of the Company with, among others, the
Company's investment adviser, distributor, custodian, transfer agent and
fund accountant;
8. Coordinate with the Company's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
9. Calculate performance data of the Funds for dissemination to up to fifteen
(15) information services covering the investment company industry;
10. Prepare and file the Company's tax returns;
11. Assist with the layout and printing of prospectuses and assist with and
coordinate layout and printing of the Funds' semi-annual and annual reports
to Shareholders;
12. Assist with the design, development, and operation of the Funds, including
new portfolios or classes, investment objectives, policies and structure,
and provide consultation related to legal and regulatory aspects of the
establishment, maintenance, and liquidation or dissolution of Funds;
13. Make available appropriate individuals to serve as officers of the Company
(to serve only in ministerial or administrative capacities relevant to
BISYS' services hereunder, except as otherwise provided in this Agreement),
upon designation as such by the Board;
14. Obtain and maintain fidelity bonds and directors' and officers'/errors and
omissions insurance policies for the Company in accordance with Rules 17g-1
and 17d-1 under this 1940 Act at the expense (except as otherwise provided
in the Agreement) of the Company and Funds and file the fidelity bonds and
any notices with the SEC as required under the 1940 Act, to the extent such
bonds and policies are approved by the Board;
15. Monitor and advise the Company and its Funds on their regulated investment
company status under the Internal Revenue Code of 1986, as amended. In
connection with the foregoing, prepare and send quarterly reminder letters
related to such status, and prepare quarterly compliance checklist for use
by investment adviser(s) if requested;
16. Maintain corporate records on behalf of the Company, including, but not
limited to, minute books, the Charter of the Company and By-Laws for the
Company;
27
17. Assist the Company in developing portfolio compliance procedures for each
Fund, and provide daily and periodic compliance monitoring services
incorporating certain of those procedures, which will include, among other
matters, compliance with investment restrictions imposed by the 1940 Act,
each Fund's investment objective, defined investment policies, and
restrictions, tax diversification, and distribution and income
requirements, provided such are determinable based upon the Fund's
accounting records. In connection with the foregoing, review quarterly
compliance reports that are prepared by the investment adviser(s), and
notify appropriate Fund officers and adviser of xxxx-to-market issues
pursuant to Board-approved procedures. BISYS will also provide the Board
with quarterly results of compliance reviews;
18. Provide assistance and guidance to the Company with respect to matters
governed by or related to regulatory requirements and developments
including: monitoring regulatory and legislative developments which may
affect the Company, and assisting in strategic planning in response
thereto; assisting the Company and providing on-site personnel in
responding to and providing documents for routine regulatory examinations
or investigations; and coordinating with and taking instructions from
counsel to the Company in response to such routine or non-routine
regulatory matters. The assistance to be provided with respect to SEC
inspections includes (i) rendering advice regarding proposed responses (ii)
compiling data and other information in response to SEC requests for
information and (iii) communicating with Fund management and portfolio
managers to provide status updates. In addition, BISYS will provide
appropriate assistance with respect to audits conducted by the Funds'
independent auditors, including compiling data and other information, as
necessary;
19. Manage the preparation for Board meetings by (i) coordinating Board book
preparation, production and distribution, (ii) subject to review and
approval by the Company and its counsel, preparing Board agendas,
resolutions and minutes, (iii) preparing the relevant sections of the Board
materials required to be prepared by BISYS, (iv) assisting to gather and
coordinate special materials related to annual contract renewals and
approval of Rule 12b-1 plans and related matters for and as directed by the
trustees or Fund counsel, (v) attending Board meetings and recording the
minutes, and (vi) performing such other Board meeting functions as shall be
agreed by the parties in writing;
20. Furnish advice and recommendations with respect to other aspects of the
business and affairs of the Funds as the Company shall request and the
parties shall agree in writing;
21. Assist the Company in connection with its obligations under Sections 302
and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and Rules 30a-2 and Rule
28
30a-3 under the 1940 Act (collectively, with such other related regulatory
provisions applicable to the Company, "Xxxxxxxx-Xxxxx"). BISYS will
internally establish and maintain controls and procedures ("BISYS internal
controls") designed to ensure that information recorded, processed,
summarized, or reported by BISYS and its affiliates on behalf of the
Company and included in financial information certified by Company officers
("Certifying Officers") on Form N-CSR and Form N-Q ("Reports") is (a)
recorded, processed, summarized, and reported by BISYS within the time
periods specified in the SEC's rules and forms and corresponding disclosure
controls and procedures of the Funds ("Fund DCPs"), and (b) accumulated and
communicated to the relevant Certifying Officers consistent with the Fund
DCPs.
If requested by Certifying Officers with respect to a fiscal period during
which BISYS serves or served as financial administrator, BISYS will provide
a sub-certification consistent with the requirements of Xxxxxxxx-Xxxxx
pertaining to BISYS' services, solely for the purpose of providing a basis
of support (as to information which has been prepared, processed and
reported by BISYS, and as to BISYS internal controls) for the Certifying
Officers to render the certifications required by Xxxxxxxx-Xxxxx (or, if
applicable with respect to a Report, inform the Certifying Officers of the
reasons why the statements in such a certification would not be accurate).
In rendering such sub-certifications concerning Company Reports, BISYS may
(a) limit its representations to information prepared, processed and
reported by BISYS; (b) rely upon and assume the accuracy of the information
provided by officers and other authorized agents of the Company, including
all Other Service Providers to the Company, and compliance by such officers
and agents with the Fund DCPs, including but not limited to, the Company's
investment adviser(s) and custodian; and (c) assume that the Company has
selected the appropriate accounting policies for the Fund(s).
The Company shall assist and cooperate with BISYS (and shall use its best
efforts to cause its officers, investment advisers and Other Service
Providers to assist and cooperate with BISYS) to facilitate the delivery of
information requested by BISYS in connection with the preparation of the
Company's Form N-CSR and Form N-Q, including Company financial statements,
so that BISYS may submit a draft Report to the Company's Disclosure
Controls and Procedures Committee ("Fund DCP Committee") prior to the date
the relevant Report is to be filed. The Certifying Officers and the Chief
Legal Officer (if any) of the Company shall be deemed to constitute the
Fund DCP Committee in cases in which no other Fund DCP Committee has been
designated or is operative. In connection with its review and evaluations,
the Fund DCP Committee shall establish a schedule to ensure that all
required disclosures in Form N-CSR and in the financial statements for each
Fund are identified and prepared in a timeframe sufficient to allow review
by the Fund DCP Committee at least
29
10 days prior to the date the relevant report is to be filed. At the
request of the Company or its Certifying Officers, BISYS shall provide
reasonable administrative assistance to the Company in connection with
obtaining service provider sub-certifications, SAS-70 reports on internal
controls, and any applicable representations to bring such certifications
current to the end of the reporting period, and in preparing summaries of
issues raised in such documents.
The Company shall, in its own capacity, take all reasonably necessary and
appropriate measures to comply with its obligations under Xxxxxxxx-Xxxxx.
Without limitation of the foregoing, except for those obligations which are
expressly delegated to or assumed by BISYS in this Agreement, the Company
shall maintain responsibility for, and shall support and facilitate the
role of each Certifying Officer and the Fund DCP Committee in designing and
maintaining the Fund DCPs in accordance with applicable laws, including (a)
ensuring that the Fund DCP Committee and/or Certifying Officers obtain and
review sub-certifications and reports on internal controls from the
Company's investment adviser(s) and Other Service Providers, if any,
sufficiently in advance of the date upon which the relevant financial
statements must be finalized by BISYS (in order to print, distribute and/or
file the same hereunder), (b) evaluating of the effectiveness of the design
and operation of the Fund DCPs, under the supervision, and with the
participation of, the Certifying Officers, within the requisite timeframe
prior to the filing of each Report, and (c) ensuring that its Certifying
Officers render the requisite certifications or take such other actions as
may be permitted or required under applicable laws;
22. Coordinate formulating and filing of the Funds' proxy voting records (as
approved by the investment adviser) on Form N-PX;
23. File holdings reports on Form N-Q as required at the end of the first and
third fiscal quarters of each year;
24. Prepare quarterly brokerage allocation compliance checklist and supporting
documentation for use by investment adviser(s), as requested;
25. Oversee/coordinate Trustee compensation;
26. Prepare and distribute Trustee/Officer Questionnaires, review completed
Questionnaires and resolve any open issues with the Company and counsel;
27. Review amendments to registration statements, in the ordinary course, and
proxy statements prepared by counsel;
28. Prepare and file amendments to the Declaration of Trust, as necessary;
29. Prepare amendments to the By-Laws, as necessary; and
30
30. Assist with the formation and registration of the Funds, subject to review
and oversight of the Funds' counsel.
31
SCHEDULE C
TO THE MASTER SERVICES AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC. AND GIANT 5 FUNDS TRUST COMPANY
FUND ACCOUNTING SERVICES
(a) BISYS will keep and maintain the following books and records of each Fund
pursuant to Rule 31a-1 (the "Rule") under the 1940 Act:
1. 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;
2. 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;
3. Separate ledger accounts required by subsection (b)(2)(ii) and
(iii) of the Rule; and
4. A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the
Rule.
(b) In addition to the maintenance of the books and records specified above,
BISYS shall perform the following accounting services for each Fund:
1. Allocate income and expense and 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;
2. 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, (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
(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
32
relevant market but prior to the Fund's pricing time, or which
are otherwise required to be made subject to a fair value
determination under the Valuation Procedures, and (C) prices
obtained from each Fund's investment adviser or other designee,
as approved by the Board;
3. Coordinate the preparation of reports that are prepared or
provided by Fair Value Information Vendors which help the Company
to monitor and evaluate its use of fair value pricing information
under its Valuation Procedures;
4. Verify and reconcile with the Funds' custodian all daily trade
activity;
5. 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; (and other yields or standard or non-standard
performance information as mutually agreed);
6. 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, and, as agreed, in certain cases, to
newspapers;
7. If applicable, report to the Company the periodic market pricing
of securities in any money market funds, with the comparison to
the amortized cost basis;
8. Determine and report unrealized appreciation and depreciation on
securities held in variable net asset value funds;
9. Amortize premiums and accrete discounts on fixed income
securities purchased at a price other than face value, if
requested by the Company;
10. Update fund accounting system to reflect rate changes, as
received from a Fund's investment adviser, on variable interest
rate instruments;
11. Post Fund transactions to appropriate categories;
12. Accrue expenses of each Fund according to instructions received
from the Company's administrator, and submit changes to accruals
and expense items to authorized officers of the Company (who are
not BISYS employees) for review and approval;
33
13. Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income and
expense accounts;
14. Provide accounting reports in connection with and coordinate with
independent auditors concerning the Company's regular annual
audit, and other audits and examinations by regulatory agencies;
15. Provide such periodic reports as the parties shall agree upon, as
set forth in a separate schedule;
16. Provide a representative (in a non-voting capacity) for the
Company's Pricing Committee, if any; and
17. Assist the Company in identifying instances where market prices
are not readily available, or are unreliable, within parameters
set forth in the Company's Valuation Procedures.
(c) BISYS shall also perform the following additional accounting services for
each Fund:
1. Provide monthly a hard copy of the unaudited financial statements
described below, upon request of the Company. The unaudited
financial statements will include the following items:
A. Unaudited Statement of Assets and Liabilities;
B. Unaudited Statement of Operations;
C. Unaudited Statement of Changes in Net Assets; and
D. Unaudited Condensed Financial Information;
2. Provide accounting information for the following (in compliance
with Regulation S-X as applicable):
A. federal and state income tax returns and federal excise tax
returns;
B. the Company's semi-annual reports with the SEC on Form N-SAR
and Form N-CSR;
C. the Company's schedules of investments for filing with the
SEC on Form N-Q;
D. the Company's annual and semi-annual shareholder reports and
quarterly Board meetings;
E. registration statements on Form N-1A and other filings
relating to the registration of shares;
34
F. BISYS' monitoring of each Fund's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code of 1986, as amended;
G. annual audit by the Company's auditors; and
H. examinations performed by the SEC;
3. Calculate turnover and expense ratio;
4. Prepare schedule of capital gains and losses;
5. Provide daily cash report;
6. Maintain and report security positions and transactions in
accounting system;
7. Prepare broker commission report;
8. Monitor expense limitations;
9. Monitor wash sales;
10. Provide financial information otherwise maintained by BISYS that
may be relevant to the investment adviser's reports on soft
dollar brokerage transactions;
11. Maintain list of failed trades; and
12. Provide unrealized gain/loss report.
35
SCHEDULE D
TO THE MASTER SERVICES AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC. AND GIANT 5 FUNDS TRUST COMPANY
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
(a) Process shareholder purchase and redemption orders;
(b) Set up accounts based on applicable prospectus minimums and
BISYS' internal procedures, and populate with 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; and
(g) Service shareholder accounts in accordance with minimum purchase
requirements set forth in the prospectus.
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; and
(c) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders, upon request.
36
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;
and
(c) Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
(a) Where appropriate information is available, provide reports for
tracking rights of accumulation and purchases made under a Letter
of Intent;
(b) Calculate fees due under Rule 12b-1 plans for distribution and
marketing expenses;
(c) Provide for payment of commission on direct shareholder purchases
in a load Fund; and
(d) Calculate redemption fees, as appropriate.
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; and
(d) Maintain account documentation files for each shareholder.
37
6. Anti-Money Laundering ("AML") Services
(a) Where appropriate and information is available, 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; and
(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.
7. Blue Sky Services
Prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares in the Company as may be
required in order to comply with Federal and state securities laws) as may
be necessary or desirable to register the shares in the Company ("Shares")
with state securities authorities, monitor the sale of Shares for
compliance with state securities laws, and file with the appropriate state
securities authorities the registration statements and reports for the
Company and the Shares and all amendments thereto, as may be necessary or
convenient to register and keep effective the registration of the Company
and the Shares with state securities authorities to enable the Company to
make a continuous offering of its Shares. State securities ("Blue Sky")
exemption services are made available at a standard fee which is earned by
BISYS based on exemptions obtained by the Company.
8. Services Related to Shareholder Service Agreements.
Coordinate the implementation of service arrangements covered by
shareholder service plans adopted by the Board (each, a "Shareholder
Service Plan") with the financial institutions that serve, or propose to
serve, as shareholder services agents
38
thereunder ("Shareholder Service Agents"); review the qualifications of
Shareholder Service Agents to serve as such under the relevant Shareholder
Service Plan; coordinate and assist in the Company's execution and delivery
of shareholder service agreements ("Shareholder Service Agreements");
report to the Board regarding amounts paid under Shareholder Service
Agreements and the nature of Services provided by the Shareholder Service
Agents thereunder; and maintain appropriate records in connection with the
foregoing;
TRANSFER AGENCY REPRESENTATION
Following each quarterly period, BISYS will provide a representation to the
following effect pertaining to the AML Services rendered by BISYS hereunder
during such quarterly period:
1. Performance of good order review for all new and reregistered
accounts;
2. Performance of acceptance review for all monetary instruments
received;
3. Administration of signature guarantee policy in accordance with
prospectus requirements;
4. If applicable, administration of escrow hold policy in accordance with
prospectus requirements;
5. Verification of customer address changes;
6. Verification of customer identification for all new accounts and all
name changes on existing accounts;
7. Monitoring of all purchase transactions made with cash equivalents
totaling in excess of $10,000. The number of Form 8300 reports filed
during the period will be reported;
8. Monitoring of all accounts for suspicious activity. The number of Form
SAR reports filed during the period will be reported;
9. Review of shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental
organizations, such as the Office of Foreign Asset Control. The number
of accounts frozen and otherwise reported to authorities during the
period will be reported;
10. Creation of the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
11. Maintenance of all records and other documentation related to
shareholder accounts and transactions required to be prepared and
maintained pursuant to the Company's AML Program for all BISYS
transfer agent services.
39
The following will be provided in such representation if the Company falls
under the related USA PATRIOT Act of 2001 provisions:
12. Performance of 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
13. Performance of the required due diligence on any new correspondent
accounts opened during the period.
40
SCHEDULE E
TO THE MASTER SERVICES AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC. AND GIANT 5 FUNDS TRUST COMPANY
COMPLIANCE SERVICES
1. Review monthly compliance reports that are prepared by the investment
adviser(s);
2. Perform independent monthly portfolio compliance testing;
3. Prepare quarterly tax compliance checklist for use by investment
adviser(s);
4. Notify appropriate Fund officers of xxxx-to-market issues pursuant to
Board-approved procedures;
5. Provide appropriate assistance with respect to SEC inspections, including
(i) rendering advice regarding proposed responses, (ii) compiling data and
other information in response to SEC requests for information, (iii)
communicating with SEC staff members, as necessary, and (iv) meeting with
portfolio managers to provide guidance on audit;
6. Provide appropriate assistance with respect to audits conducted by the
Funds' independent accountants, including (i) compiling data and other
information and (ii) communicating with independent accountants, as
necessary;
7. Consult with and advise, on a proactive basis, Fund portfolio managers with
respect to compliance matters;
8. Prepare quarterly brokerage allocation compliance checklist and supporting
documentation for use by investment adviser(s);
9. Provide on-site compliance training for investment advisory personnel, as
requested;
10. Prepare Fund-specific compliance manual;
11. Provide investment adviser with portfolio compliance checklists; and
12. Provide Board with quarterly results of compliance reviews and testing.
41
SCHEDULE F
TO THE MASTER SERVICES AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC. AND GIANT 5 FUNDS TRUST COMPANY
FEES
The Company shall pay BISYS on the first business day of each month, or as
otherwise set forth below, fees for services performed under this Agreement,
determined at the annual rates set forth below. These fees are based on one
investment company and two funds; fees for additional investment companies
and/or funds will be agreed upon by the parties.
ADMINISTRATIVE AND FUND ACCOUNTING SERVICES FEES:
Annual Asset-Based Fee
0.10% of the first $250 million in aggregate net assets of all Funds;
plus
0.07% of aggregate net assets of all Funds from over $250 million to
$500 million; plus
0.05% of aggregate net assets of all Funds from over $500 million to
$750 million; plus
0.04% of aggregate net assets of all Funds from over $750 million to
$1 billion; plus
0.03% of aggregate net assets of all Funds in excess of $1 billion.
The Annual Asset-Based Fee is subject to an annual minimum equal to the
number of funds multiplied by $65,000.
Annual Additional Per Class Fee: $5,000 per class in excess of one class
TRANSFER AGENCY SERVICES FEE:
Annual Per-Account Fees, applied to each shareholder account on BISYS'
transfer agency system, and subject to an annual minimum of $20,000 per
Fund:
Per Open Non-Networked Account
Accounts 0 - 50,000 $20; plus
Accounts 50,001 and above $17.50
Per Open Networked Account $15
42
Per Closed Accounts $2
For these purposes, the following categories constitute an open account on the
BISYS system in any one month: open account with a positive balance, open
account with a zero balance, and closed account with activity. Closed accounts
with no activity in the month are considered a closed account for billing
purposes. BISYS will provide the Company with a monthly report showing open
accounts with a zero balance.
ANNUAL MINIMUM FEE:
The Administrative, Fund Accounting and Transfer Agency fees set forth
above are subject to an annual minimum of $125,000 for one investment
company. Other fees payable to BISYS (for distribution services, compliance
services, etc.) will not count towards this minimum.
COMPLIANCE SERVICES FEE:
$25,000 annually
AML FEES
Annual Fees
Program servicing: $4,500 for the first 50,000 accounts,
plus
$2,500 for accounts in excess of 50,000
(to be billed in equal monthly installments)
Early Warning annual fee $575.00
Early Warning per record cost: $0.22
Early Warning searches for Networked Level III are conducted and fees
applied every three weeks.
Equifax - per request cost $5.00
FAIR VALUE SUPPORT SERVICES FEES
As of the Effective Date, the Company does not desire to receive fair value
services from BISYS. If the Company desires to receive fair value services from
BISYS in the future, fees for fair value services will be mutually agreed by the
parties.
OUT OF POCKET EXPENSES AND MISCELLANEOUS CHARGES
The out of pocket expenses and miscellaneous services fees and charges provided
for under this Agreement are not included in the above fees and shall also be
payable to BISYS in accordance with the provisions of this Agreement.
43
