Exhibit (h)
MASTER SERVICES AGREEMENT
AGREEMENT made as of the 17th day of December, 2004, between BISYS FUND
SERVICES OHIO, INC. ("BISYS"), an Ohio corporation having a place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 and Xxxxxxxx Capital Management Trust
(the "Trust") a Delaware business trust, having a place of business at 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform administration, fund
accounting and transfer agency services for the Xxxxxxxx Capital Management
Liquid Assets Fund (the "Liquid Assets Fund"), and may perform services for such
additional investment portfolios as hereafter may be established from time to
time by the Trust (collectively, the "Funds") and;
WHEREAS, BISYS is willing to perform services for the Liquid Assets Fund
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 administrator, fund accountant
and transfer agent of the Trust, and to furnish the Trust with administrative,
fund accounting and transfer agency services as 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 and the Schedules hereto.
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 Trust or Funds in any way, and shall
not be deemed an agent of the Trust or any Funds. The Trust currently consists
of only one Fund, the Liquid Assets Fund. Notwithstanding any other provision of
this Agreement, the parties agree that BISYS' commitment hereunder is limited to
the Trust as presently constituted, i.e., as consisting only of the Liquid
Assets Fund).
2. Services.
(a) Administration Services. BISYS shall perform the
administrative services set forth in Schedule B 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 the
Fund's investment performance as it may reasonably request,
but
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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
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.
(b) Fund Accounting Services. BISYS shall perform for the Trust
the fund accounting services set forth 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.
(c) Transfer Agency Services. BISYS shall perform for the Trust
the transfer agency services set forth in Schedule D hereto.
BISYS also agrees to perform for the Trust such special
transfer agency 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.
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, 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 Trust or 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. Except as explicitly set
forth herein, BISYS shall only perform additional services as are provided on an
amendment to this Agreement or to schedules hereto, in consideration of such
fees as the parties hereto agree.
BISYS may utilize agents in its performance of its services and, with
prior notice to the Trust, may appoint in writing other parties qualified to
perform 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; provided, however, that (i) the
Board's approval shall be required to establish an arrangement in which a
Sub-Agent acts as sub-administrator, sub-fund accountant, or sub-transfer; and
(ii) any agent (including any Sub-Agent) retained by BISYS shall be the agent of
BISYS and not the agent of the Trust, and that BISYS shall be fully responsible
for the acts of such agent (or Sub-Agent) and shall not be relieved of any of
its responsibilities hereunder by the appointment of an agent (or Sub-Agent). In
the event that a Sub-Agent is retained by the Trust (and/or by BISYS at the
request or instruction of
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the Trust), the foregoing shall not apply to the extent it is inconsistent with
any written agreement(s) entered into by the parties with respect thereto.
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 all items which it is obligated to provide under this
Agreement, and shall pay all compensation, if any, of any 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 or agent of
the Trust (who is not a BISYS employee) retained by the Board to perform
services on behalf of the Trust.
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 Trust 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 of beneficial interest in the Trust ("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
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 services for
Funds other than the Liquid Assets Fund, and/or any additional
services to be provided 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 set forth in Schedule E,
the Trust agrees to reimburse BISYS for all of its actual
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
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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 printing, production (including graphics support,
copying, and binding) and distribution expenses incurred
in relation to Board meeting materials;
(iv) All freight and other delivery and bonding charges
incurred in delivering materials to and from the Trust,
its investment advisers and custodian;
(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) All registration fees and other expenses associated with
"blue sky" services; and
(xiii) 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, 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 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 on
Schedule C)
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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 Trust
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 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;
(iv) Fees and expenses associated with providing the "AML
Services," as defined in Section 23, and as set forth in
further detail on Schedule E;
(v) 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;
(vi) Fees for development of any custom interfaces, billed at
a mutually agreed upon rate;
(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; and
(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 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 date of the conversion of
the Liquid Assets Fund to BISYS' transfer agency systems, which shall take place
on or about December 20, 2004 (the "Conversion Date"); provided that for
administration and fund accounting services the conversion shall occur on or
about January 3, 2004, and the services and fees associated with administration
and fund accounting shall commence upon such latter conversion date.
6. Term.
This Agreement shall continue in effect for an initial period through
December 31, 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 Section 6, "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
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
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' reasonable cash disbursements in connection with BISYS' activities in
effecting such termination, including without limitation, the delivery to the
Trust, its investment adviser and/or other parties of the Trust's property,
records, instruments and documents.
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 service provider, or if a third party
is added to perform
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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 (x) the next
twelve (12) months or (y) if less than twelve (12), 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 number of shareholder
accounts and fees payable to BISYS monthly during the 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 a 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 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 in the performance of
services 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 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
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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
request, 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 A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8. Legal Advice.
BISYS may notify the Trust if BISYS reasonably determines that it is in
need of the advice of counsel to the Trust with regard to BISYS'
responsibilities and duties pursuant to this Agreement. BISYS may rely upon the
advice of counsel to the Trust; however, this Agreement shall not obligate
counsel to the Trust to render such advice. After so notifying the Trust, if
BISYS does not obtain the advice of counsel to the Trust 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 Trust
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 Trust or any Fund or any
shareholder or beneficial owner of the Trust 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 Trust until receipt of actual notice
thereof from the Trust.
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 Trust or by the shareholder or
shareholder's agent, as the case may be, and shall be
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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, 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 Declaration of Trust, By-Laws or then-current
Prospectus.
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 provide prompt notice to the Trust 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 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 (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
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 also 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
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.
If and when this Agreement becomes applicable to additional Funds, and if
such Fund(s) utilize Fair Value Information Vendors (as defined in Schedule C),
the Trust
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instructs and authorizes BISYS to provide information pertaining to
the Fund's portfolio to Fair Value Information Vendors in connection with the
fair value determinations made under the Trust's Valuation Procedures (as
defined in Schedule C) and other legitimate purposes related to the services to
be provided hereunder. The Trust acknowledges that while BISYS' services related
to fair value pricing are intended to assist the Trust and its Board in its
obligations to price and monitor pricing of Fund portfolios, 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.
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
(collectively, "Losses") resulting directly and proximately from BISYS'
performance of services under 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 Trust,
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 involving 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 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 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 any
counsel retained by the indemnified party. The indemnity and defense provisions
set forth herein shall indefinitely survive the termination of this Agreement.
The provisions of this Section 10 are subject to the provisions of Section
9.
11. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the Trust 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 Trust and to make such books and records
available for inspection by the Trust 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 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, (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 Trust's Declaration of Trust, Prospectus and applicable law,
or (v) as requested or authorized by the Trust (including pursuant to its
policies and procedures). 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(b) (Anti-Money Laundering Provisions).
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 schedules
hereto), or as subsequently agreed upon by the parties pursuant to an amendment
to this Agreement (or schedules hereto).
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The Trust agrees to examine each such report or copy provided to it promptly and
will report or cause to be reported 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 Trust. All such records and other data which is the property of the Trust
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 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 (6)
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 (Delaware), and has
full capacity and authority to enter into this agreement and
to carry out its obligations hereunder;
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(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 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) By virtue of the Declaration of Trust, shares of each Fund
which are redeemed by the Trust may be resold by the Trust;
and
(f) (i) The Trust 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
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 (iv) 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 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;
(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 Trust and BISYS' equipment, facilities,
and other property
13
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; and
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, or will furnish upon request, the
following, as amended and current as of the Effective Date:
(a) A copy of the Declaration of Trust of the Trust and any
amendments thereto;
(b) A copy of the Trust'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 Trust
14
to execute and deliver this Agreement and authorization for
specified officers of the Trust to instruct BISYS hereunder;
and (ii) authorization of BISYS to act as administrator, fund
accountant and 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 each of the following documents 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;
(g) A copy of the Trust'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 Trust's Valuation Procedures, as defined in Schedule
C.
20. Information Furnished by BISYS.
BISYS has furnished to the Trust, or will furnish upon 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 Trust;
(c) The current BISYS As-of Trading Policy; and
15
(d) The current version of BISYS written polices and procedures
with respect to its provision on AML Services (as defined in
Section 23 below).
21. Amendments to Documents.
The Trust will provide BISYS with advance notice of any material
amendments to the items set forth in Section 19 that would affect, or that may
affect, any services performed by BISYS. 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 Trust, would require BISYS to make specific
changes to its service model, BISYS will use reasonable good faith efforts to
inform the Trust of that changes 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 Trust with written copies of
any amendments to, or changes in, any of the items referred to in Section 20.
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, the indemnification provisions of Section 10 hereof are
applicable to BISYS' reasonable reliance upon such amendments and/or changes.
23. Compliance with Laws.
(a) Prospectus and Public Offering. Except for information which is the
obligation of BISYS as set forth in Section 11 hereof, and except as provided in
the services listed in the schedules hereto which call for information to be
provided by BISYS for inclusion in the Prospectus, 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.
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 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.
(b) Anti-Money Laundering Provisions. The Trust 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
16
(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
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 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. 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 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 certain 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 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.
17
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 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attn:_______; 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 involved in servicing the Trust 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 records and information relating to
consumers or
18
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.
(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.
19
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXXXXX CAPITAL MANAGEMENT
TRUST
By: /s/ Dail St. Claire
---------------------------
Name: Dail St. Claire
-------------------------
Title: President
------------------------
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
-------------------------
Title: President
------------------------
20
SCHEDULE A
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND XXXXXXXX CAPITAL MANAGEMENT TRUST
FUNDS
Xxxxxxx Capital Liquid Assets Fund
21
SCHEDULE B
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND XXXXXXXX CAPITAL MANAGEMENT TRUST
ADMINISTRATION SERVICES
1. Calculate contractual Trust expenses and make and control all
disbursements for the Trust, subject to review and approval of
an officer of the Trust or other authorized person (designated
on the list of authorized persons approved by the Board),
including administration of director and vendor fees and
compensation on behalf of the Trust, and as appropriate;
2. Prepare, subject to review by counsel to the Trust, (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. State
securities ("Blue Sky") exemption services are made available
at a standard fee which is earned by BISYS based on savings
obtained by the Trust;
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
22
N-CSR; prepare and file the Trust'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 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;
7. Coordinate with 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 fifteen (15) information services covering the
investment company industry;
9. Prepare and file 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. Make available appropriate individuals to serve as officers of
the Trust (to serve only in ministerial or administrative
capacities relevant to BISYS' services hereunder, upon
designation as such by the Board;
12. Obtain and maintain fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust
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 Trust 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;
13. Monitor and advise the Trust on the 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;
14. Maintain corporate records on behalf of the Trust, including,
but not limited to, minute books, the Declarations of Trust
and By-Laws for the Trust;
15. Assist the Trust in developing portfolio compliance
procedures, and provide daily and periodic compliance
monitoring services incorporating certain of those procedures,
which will include, among other matters, .
23
compliance with investment restrictions imposed by the
Investment Company Act of 1940, the Liquid Assets 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 investment adviser officers of xxxx-to-market issues
pursuant to Board-approved procedures. BISYS will also provide
the Board with quarterly results of compliance reviews;
16. Coordinate the implementation of service arrangements covered
by Shareholder Service Plans adopted by the Board with the
financial institutions that serve, or propose to serve, as
shareholder services agents 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 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
Shareholder Service Agents thereunder; and maintain
appropriate records in connection with the foregoing;
17. 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
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 Trust 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 Fund's independent accountants including
compiling data and other information as necessary;
18. Manage the preparation for Board meetings by (i) coordinating
Board book preparation, production and distribution, (ii)
subject to review and approval by the Trust 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 for and as directed by the
Trustees or fund counsel plans and related matters, (v)
attending Board meetings and recording the
24
minutes, and (vi) performing such other Board meeting
functions as shall be agreed by the parties in writing;
19. Furnish advice and recommendations with respect to other
aspects of the business and affairs of the Funds as the Trust
shall request and the parties shall agree in writing; and
20. To assist the Trust in connection with its obligations under
Sections 302 and 906 of the Xxxxxxxx-Xxxxx 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, and compliance by such officers and agents with the
Fund DCPs, including but not limited to, the 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 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 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") prior to the date
the relevant Report is to be filed. The Certifying Officers
and the Chief Legal
25
Officer (if any) of the Trust 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 (e.g. at least 10 days prior
to the date the relevant report is to be filed). 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,
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 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, except for those obligations which are expressly
delegated to or assumed by BISYS in this Agreement, 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.
23. Coordinate formulating and filing of the Funds' voting records
(as approved by the investment adviser) on Form N-PX.
24. File holdings reports on Form N-Q as required at the end of
the first and third fiscal quarters of each year.
25. Prepare quarterly brokerage allocation compliance checklist
and supporting documentation for use by investment adviser(s),
as requested.
26. Oversee/coordinate Trustee compensation.
27. Prepare and distribute Trustee/Officer Questionnaires, review
completed Questionnaires and resolve any open issues with the
Trust and counsel.
26
28. Review proxy statements prepared by counsel.
29. Prepare and file amendments to the Declaration of
Trust/Articles of Incorporation as necessary.
30. Prepare amendments to the By-Laws.
27
SCHEDULE C
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND XXXXXXXX CAPITAL MANAGEMENT TRUST
FUND ACCOUNTING SERVICES
(a) BISYS will keep and maintain the following books and records of the 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 the 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 Trust ("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
Trust (collectively, "Fair Value
28
Information Vendors") with respect to securities for which
market quotations are not readily available, for which a
significant event has occurred following the close of the
relevant market but prior to the Fund's pricing time, or which
are otherwise required to be made subject to a fair value
determination under the Valuation Procedures, and (C) prices
obtained from each Fund's investment adviser or other
designee, as approved by the Board;
3. If applicable, coordinate the preparation of reports that are
prepared or provided by Fair Value Information Services which
help the Trust 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, the Fund's net income and capital
gains, dividend payables, dividend factors, 1-day yields,
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. Report to the Trust the daily market pricing of securities in
the Liquid Assets Fund, with the comparison to the amortized
cost basis;
8. Amortize premiums and accrete discounts on fixed income
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 the 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;
29
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 and coordinate
with independent auditors concerning 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.
15. Provide a representative (in a non-voting capacity) for
Pricing Committee; and
16. Assist the Trust in identifying instances where market prices
are not readily available, or are unreliable, within
parameters set forth in the Trust'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 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: (in
compliance with Reg. S-X as applicable):
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 Form
N-CSR;
C. the Trust's annual and semi-annual shareholder reports
and quarterly Board meetings;
D. registration statements on Form N-1A and other filings
relating to the registration of shares;
E. BISYS' monitoring of each Fund's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code, as amended;
30
F. annual audit by the Trust's auditors; and
G. examinations performed by the SEC.
3. Calculate turnover and expense ratio.
4. Prepare schedule of Cap 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 Adviser's reports on soft dollar
brokerage transactions.
11. Maintain list of failed trades.
12. Provide unrealized gain/loss report.
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SCHEDULE D
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND XXXXXXXX CAPITAL MANAGEMENT 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.
(g) Review account applications to determine whether they
are in "good order" and completeness.
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.
32
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.
(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.
(e) Calculate redemption fees.
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.
(e) Work with intermediaries to coordinate the approach to
handling investments or transactions by persons
suspected of engaging in market timing.
33
6. Anti-Money Laundering Services
(a) NOTE: BISYS' services do not include verifying
shareholder identity upon opening new accounts or
maintaining related records. Rather, BISYS will rely on
Xxxxxxxx Capital to complete such verifications in
accordance with the Trust's customer identification
program and maintain related records. BISYS will perform
the other AML Services set forth below.
(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 (except as otherwise provided
herein), 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.
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
34
(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 forgoing, 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:
9. Performance of good order review for all new and reregistered
accounts (with the exception of customer identity verification,
which will be performed by Xxxxxxxx Capital);
10. Performance of acceptance review for all monetary instruments
received;
11. Administration of signature guarantee policy in accordance with
prospectus requirements;
12. Administration of escrow hold policy in accordance with prospectus
requirements;
13. Verification of customer address changes;
14. 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;
15. Monitoring of all accounts for suspicious activity. The number of
Form SAR reports filed during the period will be reported;
16. 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
35
frozen and otherwise reported to authorities during the period will
be reported;
17. Creation of the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
18. Maintain 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 of 2001 provisions:
19. Perform 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.
20. Perform required due diligence on any new correspondent accounts
opened during the period.
36
SCHEDULE E
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND XXXXXXXX CAPITAL MANAGEMENT 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, a fee
for administration, fund accounting and transfer agency services comprised of
the following components, determined at the annual rates set forth below. The
Fees shall accrue daily and are payable monthly. This fee schedule assumes that
the Liquid Assets Fund is the only Fund of the Trust and therefore is not valid
for any other Fund.
ADMINISTRATION FEE:
2.5 basis points (0.025%) on the first $500 million in average net assets of the
Fund;
2 basis points (0.02%) on the average net assets of the Fund in excess of $500
million up to $1 billion; and
1.75 basis points (0.0175%) on the average net assets of the Fund in excess of
$1 billion.
FUND ACCOUNTING FEE:
1.25 basis points (0.0125%) on average net assets of the Fund.
TRANSFER AGENCY FEE:
A base fee of $17,000 per class per of shares, per annum; plus
The following per-account fees, per annum, with respect to each shareholder
account (open or closed) on BISYS' transfer agency system:
ACCOUNT TYPE FEE PER ACCOUNT
Direct Account $20
NSCC Networked Account $15
Closed Account $ 2
For these purposes, the following categories constitute an open account on the
BISYS system in any one month: open account with balance, open account with zero
balance,
37
open account with negative balance and closed account with activity. Closed
accounts with no activity in the month are considered a closed account for
billing purposes.
MINIMUM FEE:
The foregoing fees are, in the aggregate, subject to an annual minimum fee of
$125,000.
CPI ADJUSTMENT
The fixed fees and other fees expressed as stated dollar amounts in this
schedule and in the Agreement 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.
OUT OF POCKET EXPENSES AND MISCELLANEOUS CHARGES
The out of pocket expenses and miscellaneous services fees and 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.
AML FEES AND EXPENSES:
Systems costs, if applicable to any AML Services rendered by BISYS
Early Warning annual fee $575.00
Early Warning per record cost $ 0.22
for new account* registration
review - does not apply to Network
Level III accounts
Equifax - per request cost $ 5.00
-----------------
*CHANGES TO ACCOUNT REGISTRATION INFORMATION OR OTHER ACCOUNT-RELATED
INFORMATION MAY RESULT IN CHARACTERIZING THE ACCOUNT AS A "NEW ACCOUNT"
FOR THESE PURPOSES.
FAIR VALUE SUPPORT SERVICES
If and when applicable to additional Funds, if BISYS provides Fair Value
Support Services, BISYS shall receive the annual servicing fee for each Fund
that the Trust designates as being subject to fair value determinations and for
which Fair Value Support Services are to be provided by BISYS hereunder, as
follows:
One-time Development Fee: $10,000
Annual Fee for Fair Value Support Services to be provided by BISYS:
38
For each Fund with less than 200 securities $ 5,000
For each Funds with at least 200 securities $ 7,500
(The Annual Fee is to be billed in equal monthly installments)
The foregoing Fair Value Support Services fee(s) do not include out of
pocket costs. BISYS will also be reimbursed by the Trust for the actual costs
charged by Fair Value Information Vendors 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.
39
