Exhibit (h)(1)
MASTER SERVICES AGREEMENT
AGREEMENT made this 1st day of March, 2003, between BISYS FUND SERVICES
OHIO, INC. ("BISYS"), a Delaware corporation having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 and Levco Series Trust (the
"TrustTrust") 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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Exhibit (h)(1)
(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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Exhibit (h)(1)
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;
(viii) Sales taxes;
(ix) Costs of tax forms;
(x) Costs of all shareholder correspondence; and
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Exhibit (h)(1)
(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
(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").
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Exhibit (h)(1)
6. Term
This Agreement shall continue in effect for a period of two (2) years,
until June 30, 2005 (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's cash
disbursements in connection with BISYS's 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.
If, for any reason other than (i) nonrenewal, (ii) mutual agreement of
the parties or (iii) "cause" for termination of BISYS hereunder, BISYS's
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
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Exhibit (h)(1)
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 damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS's 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.
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Exhibit (h)(1)
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's 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's
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's willful misfeasance, bad
faith, negligence or reckless disregard of BISYS's 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.
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
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Exhibit (h)(1)
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's 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's 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
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
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Exhibit (h)(1)
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's 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's 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 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
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Exhibit (h)(1)
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 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
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Exhibit (h)(1)
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's 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;
(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;
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Exhibit (h)(1)
(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 of the
Trust and BISYS's records, data, equipment,
facilities and other property used in the performance
of its obligations hereunder are adequate and that it
will make such changes therein from time to time as
are 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,
12
Exhibit (h)(1)
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;
(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
13
Exhibit (h)(1)
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.
(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
14
Exhibit (h)(1)
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's 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.
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
15
Exhibit (h)(1)
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's 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 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
16
Exhibit (h)(1)
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's 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 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
17
Exhibit (h)(1)
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
Exhibit (h)(1)
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:
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
Name:
Title:
19
Exhibit (h)(1)
SCHEDULE A
TO THE MASTER SERVICES AGREEMENT
BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND LEVCO SERIES TRUST
FUNDS
Levco Equity Value Fund
20
Exhibit (h)(1)
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.
(c) Issue tax withholding reports to the Internal Revenue Service.
21
Exhibit (h)(1)
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
Exhibit (h)(1)
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 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:
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
Exhibit (h)(1)
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
Exhibit (h)(1)
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
Exhibit (h)(1)
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
Exhibit (h)(1)
(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.
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
27
Exhibit (h)(1)
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;
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 officers of the
Trust (to serve only in ministerial or administrative capacities
relevant to BISYS' services hereunder, upon designation as such by the
Board [with the understanding and expectation that, subject to Item 22
of this Schedule and the BISYS Policies referred to therein, an
employee of BISYS shall serve as the Chief Financial Officer of the
Trust and in that capacity provide certifications required by Sections
302 and 906 of the Sarbanes Oxley Act on behalf of the Trust];
13. Obtain, maintain and file fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust at the
expense of the Trust and Funds in accordance with the requirements of
Rules 17g-1 and 17d-1(7) under the 1940 Act, to the extent such bonds
and policies are approved by the Board;
14. Monitor and advise the Trust and its Funds on their regulated
investment Trust status under the Internal Revenue Code of 1986, as
amended;
15. 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;
28
Exhibit (h)(1)
16. 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;
17. 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;
18. 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 Shareholder Service Agents thereunder; and maintain
appropriate records in connection with the foregoing;
19. 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;
20. Assist the Trust in preparing for and conducting Board meetings by (i)
coordinating Board book production and distribution, (ii) subject to
review and approval by the Trust and its counsel, preparing Board
agendas and minutes, (iii) preparing the relevant sections of the Board
materials pertaining to the responsibilities of BISYS, (iv) assisting
and coordinating special materials related to annual contract approvals
and approval of rule 12b-1 plans and related matters, (v) attending
Board meetings and recording the minutes, and (vi) performing such
other Board meeting functions as agreed by the parties; and
21. 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.
22. [To be included if BISYS charges for certifying officer, etc.:]To
assist the Trust in connection with its obligations under 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
29
Exhibit (h)(1)
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 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
30
Exhibit (h)(1)
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
Subject to the internal policies of BISYS concerning the activities of
its employees and their service as officers of funds (the "BISYS
Policies"), BISYS shall make a BISYS employee available to the Trust to
serve, upon designation as such by the Board, as the Chief Financial
Officer of the Trust or under such other title to perform similar
functions. The parties acknowledge that as of the date hereof, the
BISYS Policies have not yet been submitted to the Trust for review. The
BISYS Policies shall be consistent with the intentions of the parties
and the more specific terms herein governing the service of any BISYS
employee as Certifying Officer(s) or Chief Legal Officer of the Trust
(an "Employee/Executive Officer"). The service rendered by BISYS under
the first sentence of this paragraph is limited to providing an
Employee/Executive Officer who, in the exercise of his or her duties to
the Trust, shall act in good faith and in a manner reasonably believed
by him or her to be in the best interests of the Trust. BISYS shall
select, and may replace, the specific employee that it makes available
to serve in the designated capacity as an Employee/Executive Officer,
in BISYS' reasonable discretion, taking into account such person's
responsibilities concerning, and familiarity with, the Trust's
operations.
The obligation of BISYS to provide an employee to serve in such
capacity is also subject to, and conditioned upon, the following:
The Fund DCPs shall contain (or the Trust and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification
process, and the parties shall comply with such procedures in all
material respects. Among other things, the procedures shall provide as
follows:
The Trust shall establish and maintain a Fund DCP Committee comprised
of persons including (at a minimum) the Trust's Principal Executive
Officer, Chief Financial Officer and Chief Legal Officer (if any) and
such other individuals as may be necessary or appropriate for the Fund
DCP Committee to ensure the cooperation of, and to oversee, each of the
Trust's agents that records, processes, summarizes, or reports
information contained in Trust Reports (or other information from which
such information is derived), including the investment
31
Exhibit (h)(1)
adviser and custodian (each, a "Service Provider"). In connection
therewith, the Fund DCP Committee shall assist the Certifying Officers
by requiring that sub-certifications acceptable to the Certifying
Officers be provided by Service Providers.
The Fund DCP Committee shall (i) meet within 10 days before the filing
date of each Report to review the accuracy and completeness of the
relevant Report and (ii) record its considerations and conclusions in a
written memorandum sufficient to support conclusions pertaining to Fund
DCPs as required by Item 9 of Form N-CSR. In conducting its review and
evaluations, the Fund DCP Committee shall:
(i) establish a schedule to ensure that all required disclosures
in Form N-CSR, including the financial statements, for the Trust are
identified and prepared in a timeframe sufficient to allow review;
(ii) review SAS 70 Reports pertaining to Service Providers, if
applicable, or in the absence of any such reports, consider the
adequacy of the sub-certifications supplied by the Service Provider. In
cases where the SAS 70 report is dated more than 90 days prior to the
issuance of a Report, the DCP Committee shall request a written
representation from the Service Provider regarding the continued
application and effectiveness of internal controls described in the
report, or descriptions of any changes in internal control structure,
as of the date of the bring-down certification;
(iii) consider whether there are any significant deficiencies in the
design or operation of the Fund DCPs that could adversely affect a
Trust's ability to record, process, summarize, and report financial
data, and in the event that any such deficiencies are identified,
disclose them to the Trust's Certifying Officers, the Trust's audit
committee and its auditors;
(iv) consider whether, to the knowledge of each member of the Fund
DCP Committee, there has been or may have been any fraud, whether or
not material, and in the event that any such occurrence is identified,
ensure that this has been disclosed to the Certifying Officers and
Chief Legal Officer (collectively, the "Executive Officers"), so that
the Executive Officers may inform the Trust's audit committee and its
auditors; and
(v) determine whether there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of the most recent evaluation of
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses, and if there were
any, take all steps necessary so that such changes and corrective
actions are reflected in the Report.
The Trust's governing documents (including its Agreement and
Declaration of Trust and By-Laws) and/or resolutions of its Board of
Trustees shall contain mandatory indemnification provisions that are
applicable to each
32
Exhibit (h)(1)
Employee/Executive Officer, that are designed and intended to have the
effect of fully indemnifying him or her and holding him or her harmless
with respect to any claims, liabilities and costs arising out of or
relating to his or her service in good faith in a manner reasonably
believed to be in the best interests of the Trust, except to the extent
he or she would otherwise be liable to the Trust by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office.
The Trust shall provide coverage to each Employee/Executive Officer
under its directors and officers liability policy that is appropriate
to the Employee/Executive Officer's role and title, and consistent with
coverage applicable to other management-level officers;
An Employee/Executive Officer that serves as a Certifying Officer shall
have the full discretion to decline to certify a particular Report that
fails to meet the standards set forth in the Certification, to report
matters involving fraud or other failure to meet the standards of
applicable law to the audit committee of the Board, or in appropriate
circumstances, to resign from his or her position, in the event that he
or she reasonably determines that there has been or is likely to be (a)
a material deviation from the BISYS Policies, (b) a violation of
Xxxxxxxx-Xxxxx or other applicable laws, or (c) a material deviation by
the Trust from the terms of this Agreement governing the services of
such Certifying Officer that is not caused by such Certifying Officer
or BISYS.
Each Employee/Executive Officer that serves as a Certifying Officer
may, and the Trust shall, promptly notify BISYS of any issue, matter or
event that would be reasonably likely to result in any claim by the
Trust, the Trust's shareholders or any third party which involves an
allegation that any Report failed to meet the standards of applicable
laws or that any of the Trust's Certifying Officers failed to exercise
their obligations to the Trust in a manner consistent with
Xxxxxxxx-Xxxxx and other applicable laws.
NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT THAT EXPRESSLY OR BY
IMPLICATION PROVIDES TO THE CONTRARY, (a) IT IS EXPRESSLY AGREED AND
ACKNOWLEDGED THAT BISYS CANNOT ENSURE THAT THE TRUST COMPLIES WITH
XXXXXXXX-XXXXX, AND (b) IF A BISYS EMPLOYEE SERVES AS AN EXECUTIVE
OFFICER OF THE TRUST, AS LONG AS SUCH EXECUTIVE OFFICER ACTS IN GOOD
FAITH AND IN A MANNER REASONABLY BELIEVED TO BE IN THE BEST INTERESTS
OF THE TRUST (AND WOULD NOT OTHERWISE BE LIABLE TO THE TRUST BY REASON
OF WILLFUL MISFEASANCE, BAD FAITH, GROSS NEGLIGENCE OR RECKLESS
DISREGARD OF THE DUTIES INVOLVED IN THE CONDUCT OF HIS OR HER OFFICE),
THE TRUST SHALL INDEMNIFY THE EXECUTIVE OFFICER AND BISYS AND HOLD THE
EXECUTIVE OFFICER AND BISYS HARMLESS FROM ANY LOSS, LIABILITY, EXPENSES
(INCLUDING REASONABLE ATTORNEYS FEES) AND DAMAGES INCURRED BY THEM
ARISING OUT OF OR RESULTING TO THE SERVICE OF SUCH EMPLOYEE/EXECUTIVE
OFFICER AS AN EXECUTIVE OFFICER OF THE TRUST.
33
Exhibit (h)(1)
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.
34
