Exhibit (h)(1)
MASTER SERVICES AGREEMENT
AGREEMENT made as of March, 1 2004, between BISYS FUND SERVICES OHIO, INC.
("BISYS"), a Ohio corporation having its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 and Levco Series Trust (the "Trust") a
Delaware business trust, with its principal place of business at Xxx Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, XX 00000.
WHEREAS, the Trust desires that BISYS perform administrative, fund
accounting and transfer agent services for the investment portfolio of the Trust
listed on Schedule A hereto (the "Fund"), as well as such additional investment
portfolios as hereafter may be established from time to time by the Trust
(collectively with the Fund, the "Funds") and;
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the Trust and BISYS hereby agree as follows:
1. Retention of BISYS
The Trust hereby retains BISYS to act as transfer agent, fund accountant
and administrator of the Trust, and to furnish the Trust with administrative,
fund accounting and transfer agent services set forth in Sections 2(a) through
(c) below. BISYS and the Trust hereby agree that BISYS will perform the services
upon the terms set forth in this Agreement.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, unless otherwise expressly provided or authorized, shall have no
authority to act for or represent the Trust or Fund in any way, and shall not be
deemed an agent of the Trust or any Funds.
2. Services
(a) Transfer Agency Services. BISYS shall perform for the Trust
the transfer agency services set forth in Schedule B hereto.
BISYS also agrees to perform for the Trust such special
services incidental to the performance of the services
enumerated herein as agreed to by the parties from time to
time. BISYS shall perform such additional services as the
parties mutually agree, for which the Trust will pay BISYS the
amounts agreed upon between them.
(b) Fund Accounting Services. BISYS shall perform for the Trust
the fund accounting services described in Schedule C hereto.
BISYS shall also perform such special accounting services, and
furnish such reports, for the Trust and the Funds to the
extent agreed upon by the parties from time to time, for which
the Trust will pay BISYS the amounts agreed upon between them.
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(c) Administrative Services. BISYS shall perform the
administrative services described in Schedule D, and, on
behalf of the Trust, shall investigate, assist in the
selection of and conduct, relations with custodians,
depositories, accountants, legal counsel, underwriters,
brokers and dealers, corporate fiduciaries, insurers, banks
and persons in any other capacity deemed to be necessary or
desirable for the Trust's operations. BISYS shall provide the
Board of Trustees of the Trust (the "Board") with such reports
regarding 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
administrative services for the Trust and each of the Funds
that are mutually agreed upon by the parties from time to
time, for which the Trust will pay BISYS the amounts agreed
upon between them.
BISYS shall provide the Trust with all necessary office space, equipment,
personnel, compensation and facilities (including facilities for shareholders'
and Board meetings) for handling the affairs of the Trust and Funds and such
other services as BISYS shall, from time to time, 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.
Except as explicitly set forth herein, BISYS shall only perform additional
services as are provided on an amendment to the relevant Schedule, in
consideration of such fees as the parties hereto agree.
BISYS may utilize agents in its performance of services and, with prior
notice to the Trust, appoint in writing other parties qualified to perform
specific transfer agency, administration or fund accounting services reasonably
acceptable to the Trust (individually, a "Sub-Agent") to carry out some or all
of its responsibilities under this Agreement with respect to a Fund; provided,
however, that the Sub-Agent shall be the agent of BISYS and not the agent of the
Trust or such Fund, and that BISYS shall be fully responsible for the acts of
such Sub-Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of such Sub-Agent.
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 also provide the items which it is obligated to provide under this
Agreement, and shall pay all compensation, if any, of officers of the Trust and
Trustees of the Trust 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 of the
Trust retained by the Board to perform services on behalf of the Trust.
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The Trust assumes and shall pay or cause to be paid all other expenses of
the Trust not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for legal and auditing services, the
expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Trustees who are not
affiliated persons of BISYS or any affiliate of BISYS (fees for other
"interested Trustees" may be paid by parties other than the Trust), 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 Trust 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 E. Fees for any additional
services to be provided by BISYS pursuant to an amendment to
any of Schedules B, C or D shall be subject to mutual
agreement at the time such amendment is proposed.
(b) In addition to paying BISYS the fees described in Schedule E,
the Trust agrees to reimburse BISYS for all of its
out-of-pocket expenses reasonably incurred in providing
services hereunder, including:
(i) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred in communication with the Trust or the Trust's
investment adviser or custodian, 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 Trust records and other materials;
(iii) All freight and other delivery and bonding charges
incurred in delivering materials to and from the Trust;
(iv) Check and payment processing fees;
(v) Fulfillment;
(vi) XXX custody and other related fees;
(vii) NSCC and related costs;
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(viii) Sales taxes;
(ix) Costs of tax forms;
(x) Costs of all shareholder correspondence; and
(xi) Any expenses incurred at the written direction of an
officer of the Trust; provided however, that such
officer is not an officer or employee of BISYS or its
affiliates.
(c) In addition, BISYS shall be entitled to receive the following
miscellaneous fees and charges:
(i) Ad hoc reporting fees billed at an agreed upon rate;
(ii) Fees for pricing information used in connection with
pricing the securities and other investments of the
Funds;
(iii) A fee for managing and overseeing the report, print and
mail functions performed by BISYS using third-party
vendors;
(iv) A fee for managing and overseeing the report, print and
mail functions performed by BISYS' third-party vendors,
not to exceed $.04 per page for statements and $.03 per
page for confirmations; fees for programming in
connection with creating or changing the forms of
statements, billed at the rate of $150 per hour; 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; and
(v) Fees associated with providing the AML Services, as
defined in Section 23;
(vi) System development fees, billed at the rate of $150 per
hour, as approved by the Trust, and all systems-related
expenses, as agreed upon in advance, associated with the
provision of special reports and services;
(vii) Fees for development of custom interfaces, billed at a
mutually agreed upon rate; and
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(viii) Expenses associated with the tracking of "as-of"
trades, billed at the rate of $50 per hour, as approved
by the Trust.
All rights of compensation under this Agreement for services performed and
for expense reimbursement shall survive the termination of this Agreement.
5. Effective Date
This Agreement shall become effective as of the date first written above
(the "Effective Date").
6. Term
This Agreement shall continue in effect for a period of two (2) years,
until February 28, 2006 (the "Initial Term"). Thereafter, unless otherwise
terminated as provided herein, this Agreement shall be renewed automatically for
successive one year periods ("Rollover Periods"). This Agreement may be
terminated only (i) by provision of a written notice of nonrenewal at least
ninety (90) days prior to the end of the Initial Term or any Rollover Period, as
the case may be, (ii) by mutual agreement of the parties or (iii) for "cause,"
as defined below, upon the provision of sixty (60) days advance written notice
by the party alleging cause.
For purposes of this Agreement, "cause" shall mean (a) a material breach
of this Agreement that has not been remedied for thirty (30) days following
written notice of such breach from the non-breaching party; (b) a final,
unappealable judicial, regulatory or administrative ruling or order in which the
party to be terminated has been found guilty of criminal or unethical behavior
in the conduct of its business; or (c) financial difficulties on the part of the
party to be terminated which are evidenced by the authorization or commencement
of, or involvement by way of pleading, answer, consent or acquiescence in, a
voluntary or involuntary case under Title 11 of the United States Code, as from
time to time is in effect, or any applicable law, other than said Title 11, of
any jurisdiction relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors.
Notwithstanding the foregoing, 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 hereto) with the
consent of the Trust, 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 Trust upon such termination shall be immediately due and
payable upon and notwithstanding such termination. BISYS shall be entitled to
collect from the Trust, in addition to the fees and expenses provided in the
Section 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 Trust and/or its
distributor or investment adviser and/or other parties of the Trust's property,
records, instruments and documents.
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If, for any reason other than (i) nonrenewal, (ii) mutual agreement of the
parties or (iii) "cause" for termination of BISYS hereunder, BISYS' services are
terminated hereunder, BISYS is replaced as transfer agent fund accountant or
administrator, or if a third party is added to perform all or a part of the
services provided by BISYS under this Agreement (excluding any Sub-Agent
appointed as provided in Section 2 hereof), then the Trust shall make a one-time
cash payment, in consideration of the fee structure and services to be provided
under this Agreement, and not as a penalty, to BISYS equal to the balance that
would be due BISYS for its services hereunder during the lesser of (x) the next
twelve (12) months, or (y) the number of months remaining in the then-current
term of this Agreement, assuming for purposes of the calculation of the one-time
payment that the fees that would be earned by BISYS for each month shall be
based upon the average assets, number of shareholder accounts and corresponding
fees that had been payable to BISYS monthly (for up to twelve (12) months) prior
to the date that services terminate, BISYS is replaced or a third party is
added.
In the event the Trust or any Fund is merged into another legal entity in
part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole prior to the expiration of the then-current term
of this Agreement, the parties acknowledge and agree that the liquidated damages
provision set forth above shall be applicable in those instances in which BISYS
is not retained to provide transfer agency services consistent with this
Agreement, including the number of accounts subject to such services. The
one-time cash payment referenced above shall be due and payable on the day prior
to the first day in which services are terminated, BISYS is replaced or a third
party is added.
The parties further acknowledge and agree that, in the event services are
terminated, BISYS is replaced, or a third party is added, as set forth above,
(i) a determination of actual damages incurred by BISYS would be extremely
difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate BISYS for damages incurred and is not intended
to constitute any form of penalty.
7. Standard of Care; Uncontrollable Events; Limitation of Liability
BISYS shall use reasonable professional diligence to ensure the accuracy
of all services performed under this Agreement, but shall not be liable to the
Trust for any action taken or omitted by BISYS in the absence of bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties. The duties of BISYS shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against BISYS
hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any
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damage, loss of data, delay or any other loss whatsoever caused by events beyond
its reasonable control. Events beyond BISYS' reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or other events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption.
BISYS shall provide the Trust, at such times as the Trust may reasonably
require, copies of reports rendered by independent public accountants on the
internal controls and procedures of BISYS relating to the services provided by
BISYS under this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8. Legal Advice
BISYS may apply to the Trust at any time for instructions and may consult
with counsel for the Trust and with accountants and other experts with respect
to any matter arising in connection with BISYS' duties, and BISYS shall not be
liable nor accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the opinion of such counsel,
accountants or other experts. BISYS shall notify the Trust at any time BISYS
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of BISYS or any affiliated companies) with regard to BISYS'
responsibilities and duties pursuant to this Agreement. After so notifying the
Trust, BISYS, at its discretion, shall be entitled to seek, receive and act upon
advice of legal counsel of its choosing, such advice to be at the expense of the
Trust unless relating to a matter involving BISYS' willful misfeasance, bad
faith, negligence or reckless disregard of BISYS' responsibilities and duties
hereunder, and BISYS shall in no event be liable to the Trust or any Fund or any
shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
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 Trust until receipt of actual notice
thereof from the Trust.
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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 Trust 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 Trust or any other person authorized by the Board or
by the shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the relevant then-current Prospectus and Statement of
Additional Information of the Trust relating to the extent that such services
are described therein unless BISYS receives written instructions to the contrary
in a timely manner from the Trust.
The parties hereto may amend any procedures adopted, approved or set forth
herein by written agreement as may be appropriate or practical under the
circumstances, and BISYS may reasonably assume that any special procedure which
has been approved by an executive officer of the Trust (other than an officer or
employee of BISYS or its affiliates) does not conflict with or violate any
requirements of the Trust's Articles of Incorporation, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
The Trust 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 endeavor to provide notice to the Trust of such
xxxxxxxxx.Xxxxx 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 Trust and furnished to BISYS
by the Trust.
The Trust 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 Trust 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 19), BISYS
may in its sole discretion determine whether to permit such exception. In the
event BISYS determines to permit such exception, the same shall become effective
when set forth in a written instrument executed by an authorized representative
of the Trust (other than an officer or employee of BISYS or its affiliates) and
delivered to BISYS (an "Exception"); provided that an Exception concerning the
requirements of the Trust's AML Program shall be authorized by the Trust'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 Trust that such instrument has been terminated and the Exception is no
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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 Trust resulting from the Exception, and the Trust shall indemnify
BISYS and hold BISYS harmless from any loss, liability, expenses (including
reasonable attorneys fees) and damages resulting to BISYS therefrom.
10. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, 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) of every
nature and character (collectively, "Losses") directly and proximately arising
out of or in any way relating to BISYS' actions taken or omissions with respect
to the performance of services under this Agreement or based, if applicable,
upon reasonable reliance on information, records, instructions or requests
pertaining to Services hereunder, that are given or made to BISYS by the Trust,
or the investment adviser, or other authorized agents of the Trust with which
BISYS must interface in providing Services; provided that this indemnification
shall not apply to actions or omissions of BISYS in cases of its own bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties.
BISYS shall indemnify, defend, and hold the Trust, and its directors,
officers, agents and nominees harmless from and against any 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.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. In order that the indemnification provisions contained herein shall
apply, however, it is understood that if in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to identify and notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder except
to the extent the indemnifying party is materially prejudiced thereby. As to any
matter eligible for indemnification, an indemnified party shall act reasonably
and in accordance with good faith business judgment and shall not effect any
settlement or confess judgment without the consent of the indemnifying party,
which consent shall not be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such
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claim, the defense shall be conducted by counsel chosen by it and reasonably
satisfactory to the indemnified party. In the event that the indemnifying party
elects to assume the defense of any suit and retain counsel, the indemnified
party shall bear the fees and expenses of any additional counsel retained by it.
An indemnified party shall not effect any settlement without the consent of the
indemnifying party unless such settlement imposes no liability, responsibility
or other obligation upon the indemnifying party and relieves it of all fault. If
the indemnifying party does not elect to assume the defense of suit, it will
reimburse the indemnified party for the reasonable fees and expenses of any
counsel retained by the indemnified party. The indemnity and defense provisions
set forth herein shall indefinitely survive the termination of this Agreement.
11. Record Retention and Confidentiality
BISYS shall keep and maintain on behalf of the Trust all books and records
which are customary or which BISYS is required to keep and maintain in
connection with its 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 Trust and to
make such books and records available for inspection by the Trust or by the
Securities and Exchange Commission (the "Commission") at reasonable times.
BISYS shall otherwise keep confidential all books and records relating to
the Trust 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, or (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 or when requested by the Trust or the dealer of
record as to such account. BISYS shall provide the Trust 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.
12. Reports
BISYS shall furnish to the Trust and to its properly-authorized auditors,
investment advisers, examiners, distributors, dealers, underwriters, salesmen,
insurance companies and others designated by the Trust in writing, such reports
at such times as are prescribed pursuant to this Agreement, or as subsequently
agreed upon by the parties pursuant to an amendment to this Agreement. The Trust
agrees to examine each such report or copy promptly and will report or cause to
be reported any errors or discrepancies therein. In the event that errors or
discrepancies, except such errors and discrepancies as may not reasonably be
expected to be discovered by the recipient after a reasonable examination, are
not so reported promptly, a report will for all purposes be accepted by and
binding upon the Trust and any other recipient, and BISYS shall have no
liability for errors or discrepancies therein and shall have no further
responsibility with
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respect to such report except to perform reasonable corrections of such errors
and discrepancies within a reasonable time after requested to do so by the
Trust.
13. Rights of Ownership
All computer programs and procedures employed or developed by or on behalf
of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
14. Return of Records
BISYS may at its option at any time, and shall promptly upon the Trust's
demand, turn over to the Trust 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 Trust, such documents and records shall
be retained by BISYS for six years from the year of creation. At the end of such
six-year period, such records and documents shall be turned over to the Trust
unless the Trust 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 Trust with such bank or banks as are
acceptable to the Trust, as may be necessary or appropriate from time to time in
connection with the transfer agency services to be performed hereunder. The
Trust 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 Trust shall
provide such bank or banks with all instructions and authorizations necessary
for BISYS to effect such disbursements.
16. Representations and Warranties of the Trust
The Trust represents and warrants to BISYS that:
(a) It is a Trust 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;
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(c) It has been 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 Trust and, when
executed and delivered by the Trust, will constitute a legal,
valid and binding obligation of the Trust, enforceable against
the Trust 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) As of the opening of business on the Effective Date of this
Agreement each Fund has authorized the number of shares set
forth on Schedule F and has registered an indefinite number of
shares with the SEC.
(f) By virtue of its Charter, shares of each Fund which are
redeemed by the Trust may be sold by the Trust from its
treasury.
The Trust also represents and warrants that (i) the Trust has adopted the
written AML Program that has been submitted to BISYS pursuant to Section 19, and
has appointed an officer of the Trust as the Trust's anti-money laundering
compliance officer ("AML Compliance Officer"), (ii) the AML Program and the
designation of the AML 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 (d) the Trust 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 Trust that:
(a) It is a Trust 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 has been in, and shall continue to be in compliance in all
material respects with all provisions of law, including
Section 17A(c) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), required in connection with the
performance of its duties under this Agreement;
(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
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of the Trust and BISYS' records, data, equipment, facilities
and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes
therein from time to time as are 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 Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust 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 Trust 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 Trust 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.
19. Information to be Furnished by the Trust and Funds
The Trust has furnished to BISYS the following, as amended and current as
of the Effective Date:
(a) A copy of the Charter of the Trust and of any amendments
thereto, certified by the proper official of the state in
which such Declaration has been filed.
(b) A copy of the Trust's Bylaws and any amendments thereto;
13
(c) A copy of the resolutions of the Board regarding (A) approval
of this Agreement and authorization of a specified officer of
the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
BISYS hereunder; and (B) authorization of BISYS to act as
Transfer Agent for the Trust.
(d) A certified list of all officers of the Trust, with the
Trust's AML Compliance Officer included among the officers
therein, and any other persons (who may be associated with the
Trust or its investment advisor), 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) Two copies of the following (if such documents are employed by
the Trust):
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Trust or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(f) A certificate as to shares of the Trust authorized, issued,
and outstanding as of the Effective Date and as to receipt of
full consideration by the Trust for all shares outstanding,
such statement to be certified by the Treasurer of the Trust.
(g) A copy of the Trust's written AML Program, including any
related Policies and Procedures.
(h) A copy of the Fund DCP, as defined in Item 22 of Schedule D.
20. Information Furnished by BISYS
BISYS has furnished to the Trust 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 Trust; and
(c) The current BISYS "As-of" Trading Policy.
14
(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 Trust.
21. Amendments to Documents
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 19 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statement of Additional
Information of the Trust, or the AML 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 Trust first obtains BISYS' approval of such amendments or changes, which
approval shall not be withheld unreasonably. BISYS shall furnish the Trust 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 Trust pursuant to Sections 19 and 21 of this
Agreement and, subject to the provisions of Section 7 hereof, the Trust hereby
indemnifies and holds harmless BISYS from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS in reasonable reliance
upon such amendments and/or changes. Although BISYS is authorized to rely on the
above-mentioned amendments to and changes in the documents and other items to be
provided pursuant to Sections 19 and 21 hereof, 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
unless the Trust first obtains BISYS' written consent to and approval of such
amendments or changes.
23. Compliance with Laws
Except for information which is the obligation of BISYS set forth in
Section 11 hereof, the Trust assumes full responsibility for the preparation,
contents, and distribution of each prospectus of the Trust 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. BISYS shall have no obligation to take
cognizance of any laws relating to the sale of the Trust's shares. The Trust
represents and warrants that all shares of the Trust that are offered to the
public are covered by an effective registration statement under the 1933 Act and
the 1940 Act.
15
The Trust acknowledges that it is a financial institution subject to the
law entitled United and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of 2001 and
the Bank Secrecy Act (collectively, the "AML Acts") and shall comply with the
AML Acts and applicable regulations adopted thereunder (collectively, the
"Applicable AML Laws") in all relevant respects, subject to the delegation of
certain responsibilities to BISYS, as provided in the next paragraph below.
The Trust hereby delegates to BISYS the performance, on behalf of the
Trust, of the anti-money laundering services set forth under Item 6 of Schedule
B (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 Trust's AML Program.
In connection therewith, BISYS agrees to maintain policies and procedures, and
related internal controls, that are consistent with the Trust's AML Program and
the requirement that the Trust employ procedures reasonably designed to achieve
compliance with the Applicable AML Laws, including the requirement to have
policies and procedures that can be reasonably expected to detect and cause the
reporting of transactions under Section 5318 of the Bank Secrecy Act. BISYS'
obligations under this delegation shall be subject to Sections 19 and 21, which
require that the AML Program and any material amendments thereto be submitted to
BISYS for its review and consent.
The Trust agrees and acknowledges that, notwithstanding the delegation
provided for in the foregoing paragraph, the Trust 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 Trust, taking into account factors such as its size,
location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Trust also acknowledges
that the performance of the AML Services involves the exercise of discretion
which in some circumstances may result in consequences to the Trust and its
shareholders (such as in the case of the reporting of suspicious activities and
the freezing of shareholder accounts). In this regard, (i) under circumstances
in which the AML Program authorizes the taking of certain actions, BISYS is
granted the discretion to take any such action as may be authorized under the
AML Program, and consultation with Trust shall not be required in connection
therewith unless specifically required under the AML Program, and (ii) the Trust
instructs BISYS that it may avail the Trust of any safe harbor from civil
liability that may be available under Applicable AML Laws for making a
disclosure or filing a report thereunder.
As concerns Networking Level III accounts and omnibus accounts, the AML
Services performed by BISYS are subject to a more limited scope, as contemplated
under the release concerning the interim final rule of the Department of the
Treasury, 31 CFR 103, effective April 24, 2002 (the "Interim Final Rule") and
the performance by the Trust of the risk-based evaluation of entities holding
such accounts, as contemplated under the release pertaining to the Interim Final
Rule. The foregoing reference to the Interim Final
16
Rule shall be deemed to include laws and regulations adopted subsequent to the
Interim Final Rule, if and to the extent consistent therewith.
24. Notices
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to Levco Series Trust Xxx Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, XX 00000; and if to BISYS, to it at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000; Attn: President, or at such other address as such party
may from time to time specify in writing to the other party pursuant to this
Section.
25. Assignment
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Section 25 shall not limit or in any way affect BISYS' right
to appoint a Sub-Agent pursuant to Section 2 hereof. This Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
26. Governing Law
This Agreement shall be governed by and provisions shall be construed in
accordance with the laws of the State of Ohio and the applicable provisions of
the 1940 Act. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control.
27. Activities of BISYS
The services of BISYS rendered to the Trust hereunder are not to be deemed
to be exclusive. BISYS is free to render such services to others and to have
other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of the Trust 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 Trust, and that BISYS may be or become interested in the Trust as a
Shareholder or otherwise
28. Privacy
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS in the course of performing its duties as
transfer agent, shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person or
entity, other than affiliates of BISYS except at the direction of the Trust 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
17
records and information relating to consumers or customers of the Trust. The
Trust 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.
29. Miscellaneous
(a) Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or
interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the
parties hereto as to the subject matter covered by this
Agreement, and supercedes all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the Prior
Agreements.
(c) This Agreement may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall
constitute one and the same agreement.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto.
* * * * *
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
LEVCO SERIES TRUST
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Secretary
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Naddoff
Name: Xxxx Naddoff
Title: President
19
SCHEDULE A
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND LEVCO SERIES TRUST
FUNDS
Levco Equity Value Fund
20
SCHEDULE B
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND LEVCO SERIES TRUST
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
(a) Process shareholder purchase and redemption orders.
(b) Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
(c) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
(d) Issue periodic statements for shareholders.
(e) Process transfers and exchanges.
(f) Process dividend payments, including the purchase of new shares,
through dividend reimbursement.
2. Shareholder Information Services
(a) Make information available to shareholder servicing unit and other
remote access units regarding trade date, share price, current
holdings, yields, and dividend information.
(b) Produce detailed history of transactions through duplicate or
special order statements upon request.
(c) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders.
3. Compliance Reporting
(a) Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. and the States in
which the Fund is registered.
(b) Prepare and distribute appropriate Internal Revenue Service forms
for corresponding Fund and shareholder income and capital gains.
21
(c) Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
(a) Provide reports for tracking rights of accumulation and purchases
made under a Letter of Intent.
(b) Account for separation of shareholder investments from transaction
sale charges for purchase of Fund shares.
(c) Calculate fees due under 12b-1 plans for distribution and marketing
expenses.
(d) Track sales and commission statistics by dealer and provide for
payment of commissions on direct shareholder purchases in a load
Fund.
5. Shareholder Account Maintenance
(a) Maintain all shareholder records for each account in the Trust.
(b) Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
(a) Verify shareholder identity upon opening new accounts.
(b) Monitor, identify and report shareholder transactions and identify
and report suspicious activities that are required to be so
identified and reported, and provide other required reports to the
Securities and Exchange Commission, the U.S. Treasury Department,
the Internal Revenue Service or each agency's designated agent, in
each case consistent with the Trust's AML Program.
(c) Place holds on transactions in shareholder accounts or freeze assets
in shareholder accounts, as provided in the Trust's AML Program.
(d) Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
(e) Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared
and maintained pursuant to the Trust's AML Program, and make the
same available for inspection by (i) the Trust's AML Compliance
Officer, (ii) any auditor of the Trust's AML Program or related
procedures, policies or controls that has been designated by the
Trust in writing, or (iii) regulatory or law enforcement
authorities, and otherwise make said records or other documents
available at the direction of the Trust's AML Compliance Officer.
22
TRANSFER AGENCY REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
(a) Beginning Balance
(b) Transactions
(c) Shareholder Transactions
(d) Reinvested Dividends
(e) Exchanges
(f) Adjustments
(g) Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to transfer
agency operations pursuant to AICPA Statement on Auditing Standards Number
70.
8. Such special reports and additional information that the parties may agree
upon, from time to time.
In addition to the foregoing, following each quarterly period, BISYS will
provide a report to the following effect pertaining to the AML Services rendered
by BISYS hereunder during such quarterly period:
1. performed good order review for all new and reregistered accounts;
2. performed acceptance review for all monetary instruments received;
3. administered signature guarantee policy in accordance with prospectus
requirements;
4. administered escrow hold policy in accordance with prospectus
requirements;
5. verified customer address changes;
23
6. verified customer identification for all new accounts and all name changes
on existing accounts;
7. monitored all purchase transactions made with cash equivalents totaling in
excess of $10,000 resulting in the filing of Form 8300 reports during the
period. The Fund does not accept cash or currency;
8. monitored all accounts for suspicious activity resulting in the filing of
[x] Form SAR reports during the period;
9. reviewed shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental organizations,
such as the Office of Foreign Asset Control resulting in the freezing and
reporting of accounts during the period;
10. created the documentation necessary to provide a basis for law enforcement
authorities to trace illicit funds; and
11. maintained all records and other documentation related to shareholder
accounts and transactions required to be prepared and maintained pursuant
to the Fund's anti-money laundering program for all BISYS transfer agent
services.
The following will be provided in such report if the Trust falls under the
related USA PATRIOT Act provisions:
1. performed the required due diligence to help prevent the opening of any
accounts for foreign shell banks during the period either directly or
through correspondent accounts; and
2. performed required due diligence on any new correspondent accounts opened
during the period.
24
SCHEDULE C
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND LEVCO SERIES TRUST
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 daily for each Fund:
1. Calculate the net asset value per share utilizing prices obtained
from the sources described in subsection (b) (2) below;
2. Obtain security prices from independent pricing services, or if such
quotes are unavailable, then obtain such prices from each Fund's
investment adviser or its designee, as approved by the Trust's
Board;
3. Verify and reconcile with the Funds' custodian all daily trade
activity;
4. 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;
5. 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;
25
6. Report to the Trust the daily market pricing of securities in any
money market Funds, with the comparison to the amortized cost basis;
7. Determine unrealized appreciation and depreciation on securities
held in variable net asset value Funds;
8. Amortize premiums and accrete discounts on securities purchased at a
price other than face value, if requested by the Trust;
9. Update fund accounting system to reflect rate changes, as received
from a Fund's investment adviser, on variable interest rate
instruments;
10. Post Fund transactions to appropriate categories;
11. Accrue expenses of each Fund according to instructions received from
the Trust's Administrator, and submit changes to accruals and
expense items to authorized officers of the Trust (who are not BISYS
employees) for review and approval;
12. Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income and
expense accounts;
13. Provide accounting reports in connection with the Trust's regular
annual audit and other audits and examinations by regulatory
agencies; and
14. Provide such periodic reports as the parties shall agree upon, as
set forth in a separate schedule.
(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 Trust. 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:
(a) federal and state income tax returns and federal excise tax
returns;
(b) the Trust's semi-annual reports with the Securities and
Exchange Commission ("SEC") on Form N-SAR and the N-CSR;
(c) the Trust's annual and semi-annual shareholder reports and
quarterly Board meetings;
26
(d) registration statements on Form N-1A and other filings
relating to the registration of shares;
(e) the Administrator's monitoring of the Trust's status as a
regulated investment Trust under Subchapter M of the Internal
Revenue Code, as amended;
(f) annual audit by the Trust's auditors; and
(g) examinations performed by the SEC.
27
SCHEDULE D
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND LEVCO SERIES TRUST
ADMINISTRATIVE SERVICES
1. Calculate contractual Trust expenses and control all disbursements for the
Trust, subject to review and approval of an authorized officer of the
Trust (who is not a BISYS employee), including administration of director
compensation on behalf of the Trust, and as appropriate;
2. Provide information and assistance to counsel to the Trust in preparing
(i) the annual update to the Trust's registration statement on Form N-1A,
(ii) other amendments to the Trust's registration statement and
supplements to its Prospectus and Statement of Additional Information, and
(iii) Notices of Annual or Special Meetings of shareholders of the Trust
and proxy materials relating thereto, and file any of the foregoing with
the Securities and Exchange Commission (the "SEC") upon the request of the
Trust or counsel to the Trust;
3. Prepare such reports, applications and documents (including reports
regarding the sale and redemption of shares in the Trust 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 Trust ("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
Trust and the Shares and all amendments thereto, as may be necessary or
convenient to register and keep effective the registration of the Trust
and the Shares with state securities authorities to enable the Trust to
make a continuous offering of its Shares;
4. Coordinate and prepare, with the assistance and approval of the Funds'
investment adviser 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; and file the final certified versions thereof on Form N-CSR 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 in connection with the annual meeting of
Shareholders each year, if one is held;.
6. Administer contracts on behalf of the Trust with, among others, the
Trust's investment adviser, distributor, custodian, transfer agent and
fund accountant;
28
7. Supervise the Trust's transfer agent with respect to the payment of
dividends and other distributions to Shareholders;
8. Calculate performance data of the Funds for dissemination to up to six (6)
information services covering the investment Trust industry;
9. Coordinate and supervise the preparation and filing of the Trust's tax
returns;
10. 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;
11. Assist with the design, development, and operation of the Funds, including
new classes, investment objectives, policies and structure;
12. Make available appropriate individuals to serve as non-executive officers
of the Trust (to serve only in ministerial or administrative capacities
relevant to BISYS' services hereunder) upon designation as such by the
Board;
13. Monitor and advise the Trust and its Funds on their regulated investment
company status under the Internal revenue Code of 1986, as amended;
14. Perform required additional administrative services and functions of the
Trust and each Fund to the extent administrative services and functions
are not provided to the Trust or such Fund pursuant to the Trust's or such
Fund's investment advisory agreement, distribution agreement, custodian
agreement, transfer agent agreement or fund accounting agreement as agreed
between the parties;
15. Maintain corporate records on behalf of the Trust, including, but not
limited to, minute books, Declaration of Trust Trust or Certificate of
Incorporation and By-Laws;
16. Assist in developing compliance procedures for each Fund, and provide
compliance monitoring services incorporating certain of those procedures,
which will include, among other matters, compliance with each Fund's
investment objective, defined investment policies, restrictions, and tax
diversification, distribution and income requirements, as are determinable
based upon the Fund's accounting records;
17. Monitor services provided under Shareholder Service Plans adopted by the
Board and financial institutions that serve, or propose to serve, as
shareholder services agents thereunder ("Shareholder Service Agents");
coordinate the services to be rendered by Shareholder Service Agents
pursuant to Shareholder Service Agreements under Shareholder Service
Plans, and review the qualifications of Shareholder Service Agents to
serve as such under the relevant Shareholder Service Plan; coordinate and
assist in the Trust's execution and delivery of Shareholder Service
Agreements; report to the Board regarding amounts paid under Shareholder
Service Agreements and the nature of Services provided by the
29
Shareholder Service Agents thereunder; and maintain appropriate records in
connection with the foregoing;
18. Provide assistance and guidance to the Trust with respect to matters
governed by or related to regulatory requirements and developments
including: monitoring regulatory and legislative developments which may
effect the Trust, and assisting in strategic planning in response thereto;
assisting the Trust in responding to and providing documents for routine
regulatory examinations or investigations; and working closely with
counsel to the Trust in response to such routine or non-routine regulatory
matter;
19. Assist the Trust in preparing for and conducting Board meetings by (i)
preparing the relevant sections of the Board materials pertaining to the
responsibilities of BISYS, (ii) assisting and coordinating special
materials related to annual contract approvals and approval of rule 12b-1
plans and related matters, and (iii) performing such other Board meeting
functions as agreed by the parties; and
20. Furnish advice and recommendations with respect to other aspects of the
business and affairs of the Funds as the Trust and BISYS shall determine
desirable.
21. In connection with Sections 302 and 906 of the Sarbanes Oxley Act of 2002
and Rule 30a-2 under the 1940 Act (collectively, with such other related
regulatory provisions applicable to the Trust, "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 Trust and included in financial information certified by Trust
officers ("Certifying Officers") on Form N-CSR ("Reports") is (a)
recorded, processed, summarized, and reported by BISYS within the time
periods specified in the Commission'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 Trust 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 Trust, including all other service providers to
the Trust (other than BISYS and its affiliates) and compliance by such
officers and agents with the Fund DCPs, including but not limited to, the
30
Trust's investment adviser(s) and custodian; and (c) assume that the Trust
has selected the appropriate accounting policies for the Fund(s).
The Trust shall assist and cooperate with BISYS (and shall 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 Trust's Form N-CSR,
including Trust financial statements, so that BISYS may submit a draft
Report to the Trust's Disclosure Controls and Procedures Committee ("Fund
DCP Committee") at least 10 days prior to the date the relevant Report is
to be filed The relevant Certifying Officers and the Chief Legal Officer
of the Fund 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 the Fund are identified and
prepared in a timeframe sufficient to allow review by the Fund DCP
Committee. At the request of the Trust or its Certifying Officers, BISYS
shall provide reasonable administrative assistance to the Trust in
connection with obtaining service provider sub-certifications and SAS-70
reports on internal controls, and in preparing summaries of issues raised
in such documents. .
The Trust 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, the Trust 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
Trust'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) evaluation of the effectiveness of
the design and operation of the Fund DCP, 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
It is acknowledged that BISYS has not agreed to make a BISYS employee available
to the Trust to serve as the Chief Financial Officer or Chief Executive Officer
of the Trust or under any other title to perform similar functions.
31
SCHEDULE E
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND LEVCO SERIES TRUST
FEES
The Trust shall pay BISYS on the first business day of each month, or at
such time(s) as BISYS shall request and the parties hereto shall agree, an
Administration, Fund Accounting and Transfer Agent Service fee computed daily at
the annual rates set forth below:
BUNDLED SERVICE FEE
TRANSFER AGENT, FUND ADMINISTRATION AND FUND ACCOUNTING
Assets $0 - $500 Million 8 bps
Assets > $500 Million 6 bps
Minimum Complex Fee $67,500 per Fund per annum
Additional Class Fee per Annum $5,000
OUT OF POCKET EXPENSE AND MISCELLANEOUS CHARGES
The Out of Pocket Expenses and Miscellaneous Charges provided for under
the Agreement are not included in the above fees and shall also be payable to
BISYS in accordance with the provisions of the Agreement.
CPI ADJUSTMENT
The fixed fees and other fees expressed as stated dollar amounts set forth
in this schedule shall be increased annually commencing on the one-year
anniversary date of the Effective Date by the percentage increase since the
Effective Date in consumer prices for services as measured by the United States
Consumer Price Index entitled "All Services Less Rent of Shelter" or a similar
index should such index no longer be published.
