Exhibit (h)(1)
MASTER SERVICES AGREEMENT
This Master Services Agreement ("Agreement") is made as of July 12, 2005,
(the "Effective Date") between BISYS Fund Services Ohio, Inc. ("BISYS"), an Ohio
corporation having a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ and Arrivato/Dow ▇▇▇▇▇ Funds (the "Company") a Delaware business trust,
having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
WHEREAS, the Company desires that BISYS perform administration, fund
accounting and transfer agency services for the investment portfolios of the
Company listed on Schedule A to this Agreement, as well as such additional
investment portfolios as hereafter may be established by the Company from time
to time (collectively, the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the Company and BISYS hereby agree as follows:
Retention of BISYS.
The Company hereby retains BISYS to act as administrator, fund accountant
and transfer agent of the Company and the Funds, and to
furnish the Company and the Funds with administrative, fund accounting and
transfer agency services as set forth in Sections 2(a) through (c) below. BISYS
will perform the services upon the terms set forth in this Agreement and the
Schedules to this Agreement. The parties will cooperate to have the Funds ready
for servicing on BISYS' service platforms by August 1,2005.
BISYS shall, for all purposes herein, be deemed to be an independent
contractor and, except as otherwise expressly provided or authorized, shall have
no authority to act for or represent the Company or Funds in any way, and shall
not be deemed an agent of the Company or any Funds.
2. Services.
(a) Administration Services. BISYS shall perform the administrative services set
forth in Schedule B to this Agreement and, on behalf of the Company, shall
investigate, and conduct relations with, custodians, depositories, underwriters,
brokers and dealers, corporate fiduciaries, insurers, banks and persons in any
other capacity deemed to be necessary or desirable for the Company's operations.
BISYS shall provide the Board of Trustees [replace with Directors if corporation
not trust] of the Company (the "Board") with such reports regarding the Fund's
investment performance as it may reasonably request, but shall have no
responsibility for supervising the performance by any investment adviser or
sub-adviser of its responsibilities. BISYS shall perform
such other administration services, and furnish such reports, for the Company
and each of the Funds that are mutually agreed upon by the parties from time to
time, for which the Company will pay BISYS the amounts agreed upon between them.
(b)Fund Accounting Services. BISYS shall perform for the Company the fund
accounting services set forth in Schedule C to this Agreement. BISYS shall also
perform such special accounting services, and furnish such reports, for the
Company and the Funds to the extent agreed upon by the parties from time to
time, for which the Company will pay BISYS the amounts agreed upon between them.
(c) Transfer Agency Services. BISYS shall perform for the Company the transfer
agency services set forth in Schedule D to this Agreement. BISYS also agrees to
perform for the Company such special transfer agency services, and furnish such
reports, for the Company and the Funds to the extent agreed upon by the parties
from time to time, for which the Company will pay BISYS the amounts agreed upon
between them.
BISYS shall provide the Company with all necessary office space,
equipment, personnel and facilities (including facilities for shareholders' and
Board meetings) for handling the affairs of the Company and Funds and such other
services as BISYS shall, from time to time, reasonably determine to be necessary
to perform its obligations under this Agreement. In addition, at
the request of the Board, BISYS shall make reports to the Board concerning the
performance of its obligations hereunder.
BISYS shall perform such other services for the Company or the Funds that
are mutually agreed upon by the parties from time to time, for which the Company
will pay BISYS the amounts agreed upon between them, from time to time. Except
as explicitly set forth herein, BISYS shall only perform additional services as
are set forth in an amendment to this Agreement, in consideration of such fees
as the parties agree.
BISYS may use one or more third parties to perform some or all of its
obligations under this Agreement. BISYS shall be fully responsible for the acts
of such third parties and shall not be relieved of any of its responsibilities
hereunder by virtue of the use of such third parties.
Allocation of Charges and Expenses.
BISYS shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
BISYS shall pay all compensation, if any, of officers and trustees of the
Company who are affiliated persons of BISYS or any affiliated entity of BISYS;
provided, however, that unless otherwise specifically provided, BISYS shall not
be obligated to pay the compensation of any employee or agent of the Company
(who is not a BISYS employee) retained by the Board to perform services on
behalf of the Company.
The Company assumes and shall payor cause to be paid all other expenses of
the Company not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for Company legal and auditing services, the
expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders (as defined below), all expenses incurred
in connection with issuing and redeeming shares of beneficial interest in the
Funds ("Shares"), the cost of custodial services, the cost of initial and
ongoing registration of the Shares under Federal and state securities laws, fees
and out-of-pocket expenses of trustees who are not affiliated persons of BISYS
or any affiliate of BISYS (fees for other "interested trustees" may be paid by
parties other than the Company), insurance, interest, brokerage costs,
litigation and other extraordinary or nonrecurring expenses, and all fees and
charges of investment advisers.
4. Fees and Expenses.
(a) The Company shall pay BISYS for the services to be provided by BISYS under
this Agreement in accordance with, and in the manner set forth in, Schedule E to
this Agreement. 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 set forth in Schedule E, the Company
agrees to reimburse BISYS for all of its actual out-of-pocket expenses
reasonably incurred in providing services hereunder, including without
limitation:
(i) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred in communication with the Company or
the Company's investment adviser or custodian, broker-dealers, shareholders or
others as required for BISYS to perform the services to be provided hereunder;
(ii)The cost of microfilm or microfiche of records or other electronic
storage of Company records and other materials;
(iii) All freight and other delivery and bonding charges incurred in
delivering materials to and from the Company, its investment advisers and
custodian;
(iv) All printing, production (including graphics support, copying, and
binding) and distribution expenses incurred in relation to Board meeting
materials;
(v) Check and payment processing fees;
(vi) Fulfillment;
(vii) ▇▇▇ custody and other related fees;
(viii) NSCC and related costs;
(ix) Sales taxes;
(x) Costs of tax forms;
(xi) Costs of shareholder correspondence;
(xii) Costs of tax data services;
(xiii) Costs of rating agency services'
(xv) All out of pocket costs incurred in connection with BISYS' provision
(if applicable, under Section 23) of Company officers and in
connection with compliance services, including, without limitation,
travel and lodging expenses incurred by officers and employees of
BISYS in connection with attendance at Board meetings and any other
meetings for which such attendance is requested or agreed upon by
the parties; and
(xvi) Any expenses incurred at the written direction of an officer of the
Company; BISYS shall be entitled to receive the following
miscellaneous fees and charges:
(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 in
Schedule C) with respect to the provision of fair value pricing information to
BISYS for use in valuing the portfolio holdings of a specific Fund or Funds that
the Company designates as being subject to fair value determinations and for
which services are to be provided by BISYS hereunder (such costs shall be
incurred at the discounted group rate made available to BISYS clients, if
applicable);
(iii) A fee for managing and overseeing the report, print and mail
functions performed by BISYS using third-party vendors; not to
exceed $.04 per image for statements and $.03 per image for
confirmations; fees for programming in connection with creating or
changing
the forms of statements, billed at a mutually agreed upon rate; and
costs for postage, couriers, stock computer paper, computer disks,
statements, labels, envelopes, checks, reports, letters, tax forms,
proxies, notices or other forms of printed material (including the
costs of preparing and printing all printed materials) which shall
be required for the performance of the services to be provided
hereunder;
(iv) Fees and expenses associated with providing the "AML Services,"
as defined in Section 23, and as set forth in further detail on
Schedule E;
(v) System development fees, billed at a mutually agreed upon rate
as approved by the Company, and all systems-related expenses, as
agreed upon in advance, associated with the provision of special
reports and services;
(vi) Fees for development of any custom
interfaces, billed at a mutually agreed upon rate; and
(vii) Interactive Voice Response System fees, charged according to
BISYS' standard rate schedule, and applicable to the level of
service (e.g., basic, transaction, premium) selected.
All rights of compensation under this Agreement for services performed and
for expense reimbursement and for payment of miscellaneous fees and charges
shall survive the termination of this Agreement.
5. Effective Date.
This Agreement shall become effective as of the Effective Date.
6. Term; Liquidated Damages.
This Agreement shall continue in effect for an initial term of three years
from the Effective Date (the "Initial Term"). Thereafter, unless otherwise
terminated pursuant to this Agreement, this Agreement shall be renewed
automatically for successive one year periods ("Rollover Periods"). This
Agreement may be terminated only (i) by provision of a written notice of
non-renewal provided at least 90 days prior to the end of the Initial Term or
any Rollover Period (which notice of non-renewal will cause this Agreement to
terminate as of the end of the Initial Term or such Rollover Period, as
applicable), (ii) by mutual agreement of the parties, or (iii) for
"cause," as defined below, upon the provision of 60 days advance written notice
by the party alleging cause.
For purposes of this Section 6, "cause" shall mean (a) a material breach
of this Agreement that has not been remedied within 30 days following written
notice of such breach from the non-breaching party; (b) a final, unappealable
judicial, regulatory or administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical behavior in the
conduct of its business; or (c) financial difficulties on the part of the party
to be terminated which are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent or acquiescence in, a voluntary
or involuntary case under Title 11 of the United States Code, as from time to
time is in effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors.
Notwithstanding the foregoing termination provisions, following any such
termination, in the event that BISYS in fact continues to perform anyone or more
of the services contemplated by this Agreement (or any Schedule or exhibit to
this Agreement) with the consent of the Company, the provisions of this
Agreement, including without limitation the provisions dealing with compensation
and indemnification, shall continue in full force and effect. Fees and
out-of-pocket expenses
incurred by BISYS but unpaid by the Company upon such termination shall be
immediately due and payable upon and notwithstanding such termination. BISYS
shall be entitled to collect from the Company, in addition to the fees and
expenses provided in Sections 3 and 4 of this Agreement, the amount of all
of BISYS' reasonable cash disbursements in connection with BISYS' activities in
effecting such termination, including without limitation, the delivery to the
Company, its investment adviser and/or other parties of the Company's property,
records, instruments and documents.
If, for any reason other than (i) non-renewal, (ii) mutual agreement of
the parties or (iii) "cause", the Company terminates this Agreement, or the
Company terminates BISYS' services, or BISYS is replaced as service provider to
the Company, then the Company shall make a one-time cash payment to BISYS, in
consideration of the fee structure and services to be provided under this
Agreement, equal to the balance that would be due BISYS for its services
hereunder during the balance of the Initial Term or any applicable Rollover
Period, as the case may be assuming for purposes of the calculation of the
one-'time payment that the fees that would be earned by BISYS for each month
would be based upon the average fees payable to BISYS monthly during the 12
months prior to the date of the event that triggers such payment.
In the event that, before the expiration of the then-current term of this
Agreement, the Company or any Fund is, in part or in whole, liquidated,
dissolved, merged into a third party, acquired by a third party, or involved in
any other transaction that materially reduces the assets and/or accounts
serviced by BISYS pursuant to this Agreement, the liquidated damages provision
set forth above shall be applicable.
If one of the events described above is partial (e.g., a termination
of BISYS as provider of some but not all of the services set forth in this
Agreement, or a liquidation of some but not all of the Funds), the liquidated
damages amount payable by the Company shall be appropriately adjusted on a pro
rata basis.
The one-time cash payment referenced above shall be due and payable within
five business days after the event that triggers the payment.
The parties further acknowledge and agree that, upon the occurrence of any
of the events described above: (i) a determination of actual damages incurred by
BISYS would be extremely difficult, and (ii) the liquidated damages payment
described above is intended to adequately compensate BISYS for damages incurred
and is not intended to constitute any form of penalty.
7. Standard of Care; Uncontrollable Events.
BISYS shall use reasonable professional diligence in the performance of
services under this Agreement, but shall not be liable to the Company for any
action taken or omitted by BISYS in the absence of bad faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties. The duties of BISYS shall be confined to those expressly set forth in
this Agreement, and no implied duties are assumed by or may be asserted against
BISYS under this Agreement.
Notwithstanding any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond BISYS' control.
Events beyond BISYS' control include, without limitation, force majeure events,
such as natural disasters, actions or decrees of governmental bodies, and
communication lines failures that are not the fault of either party. In the
event of force majeure, computer or other equipment failures or other events
beyond its control, BISYS shall follow applicable procedures in its disaster
recovery and business continuity plan and use all commercially reasonable
efforts to minimize any service interruption.
BISYS shall provide the Company, at such times as the Company may
reasonably request, copies of reports rendered by independent auditors on the
internal controls and procedures of BISYS relating to the services provided by
BISYS under this Agreement.
8. Legal Advice.
BISYS may notify the Company if BISYS reasonably determines that it is in
need of the advice of counsel to the Company with regard to BISYS'
responsibilities and duties pursuant to this Agreement. BISYS may rely upon the
advice of counsel to the Company; however, this Agreement shall not obligate
counsel to the Company to render such advice. After so notifying the Company, if
BISYS does not obtain the advice of counsel to the Company within a reasonable
period of time, BISYS shall be entitled to seek, receive and act upon advice of
legal counsel of its reasonable choosing at the reasonable expense of the
Company unless relating to a matter involving BISYS' willful misfeasance, bad
faith, negligence or reckless disregard of BISYS' responsibilities and duties
hereunder. BISYS shall in no event be liable to the Company or any Fund or any
shareholder or beneficial owner of the Company for any action reasonably taken
pursuant to legal advice rendered in accordance with this paragraph.
9. Instructions / Certain Procedures, etc.
BISYS shall be protected in acting upon any document that it reasonably
believes to be genuine and to have been signed or presented by the proper person
or persons. BISYS will not be held to have notice of any change of authority of
any officers, employees or agents of the Company until receipt of actual notice
thereof from the Company.
Subject to Section 23(b), whenever BISYS is requested or authorized to
take action hereunder pursuant to instructions from a shareholder, or a properly
authorized agent of a shareholder ("shareholder's agent"), concerning an account
in a Fund, BISYS shall be entitled to rely upon any certificate, letter or other
instrument or communication (including electronic mail), reasonably believed by
BISYS to be genuine and to have been properly made, signed or authorized by an
officer or other authorized agent of the Company or by the shareholder or
shareholder's agent, as the case may be, and shall be entitled to receive as
conclusive proof of any fact or matter required to be ascertained by it
hereunder a certificate signed by an officer of the Company or any other person
authorized by the Board or by the shareholder or shareholder's agent, as the
case may be.
As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the relevant then-current Prospectus and Statement of
Additional Information of the Company, to the extent that such services are
described therein unless BISYS receives written instructions to the contrary in
a timely manner from the Company.
The parties may amend any procedures adopted, approved or set forth herein
by written agreement as may be appropriate or practical under the circumstances,
and BISYS may reasonably assume that any special procedure which has been
approved by an executive officer of the
Company (other than an officer or employee of BISYS or its affiliates) does not
conflict with or violate any requirements of the Company's Charter, By-Laws or
then-current Prospectus.
The Company acknowledges receipt of a copy of BISYS' policy related to the
acceptance of trades for prior day processing (the "BISYS As-of Trading
Policy"). BISYS may amend the BISYS As-of Trading Policy from time to time in
its sole discretion, but will provide prompt notice to the Company of such
amendment. BISYS may apply the BISYS As-of Trading Policy whenever applicable,
unless BISYS agrees in writing to process trades according to such other as-of
trading policy as may be adopted by the Company and furnished to BISYS by the
Company.
The Company acknowledges and agrees that deviations from BISYS' written
transfer agent compliance procedures may involve a substantial risk of loss. In
the event an authorized representative of the Company (other than an officer or
employee of BISYS or its affiliates) requests that an exception be made from any
written compliance or transfer agency procedures adopted by BISYS, or any
requirements of the AML Program (as defined in Section 16), BISYS may in its
sole discretion determine whether to permit such exception. In the event BISYS
determines to permit such exception, the same shall become effective when set
forth in a written instrument executed by an authorized representative of the
Company (other
than an officer or employee of BISYS or its affiliates) and delivered to BISYS
(an "Exception"); provided that an Exception concerning the requirements of the
Company's AML Program shall also be authorized by the Company's AML Compliance
Officer (as defined in Section 16). An Exception shall be deemed to remain
effective until the relevant instrument expires according to its terms (or if no
expiration date is stated, until BISYS receives written notice from the Company
that such instrument has been terminated and the Exception is no longer in
effect). Notwithstanding any provision in this Agreement that expressly or by
implication provides to the contrary, as long as BISYS acts in good faith, BISYS
shall have no liability for any loss, liability, expenses or damages to the
Company resulting from the Exception, and the Company shall indemnify BISYS and
hold BISYS harmless from any loss, liability, expenses (including reasonable
attorneys fees) and damages resulting to BISYS therefrom.
The Company instructs and authorizes BISYS to provide information
pertaining to the Funds' investments to Fair Value Information Vendors (as
defined in Schedule C) in connection with the fair value determinations made
under the Company's Valuation Procedures (as defined in Schedule C) and other
legitimate purposes related to the services to be provided hereunder. The
Company acknowledges that while BISYS' services related to fair value pricing
are intended to assist the Company and its Board in its obligations to price and
monitor
pricing of Fund investments, BISYS does not assume responsibility for the
accuracy or appropriateness of pricing information or methodologies, including
any fair value pricing information or adjustment factors.
10. Indemnification; Limitation of Liability.
The Company shall indemnify and hold harmless BISYS and its affiliates and
their 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
Company, the investment adviser, or other authorized agents of the Company with
which BISYS must interface in providing services; provided that this
indemnification shall not apply to actions or omissions of BISYS involving bad
faith, willful misfeasance, negligence or reckless disregard by BISYS of its
obligations and duties.
BISYS shall indemnify, defend, and hold the Company, and its trustees,
officers, agents and nominees harmless from and against Losses resulting
directly and
proximately from BISYS' willful misfeasance, bad faith or negligence in the
performance of, or the reckless disregard of, its duties or obligations
hereunder; provided that this indemnification shall not apply to actions or
omissions of the Company involving bad faith, willful misfeasance, negligence or
reckless disregard by the Company of its obligations and duties.
In order that the indemnification provisions contained herein shall apply,
if in any case a party may be asked to indemnify or hold the other party
harmless, the other party shall fully and promptly advise the indemnifying party
in writing of all pertinent facts concerning the situation in question. The
party seeking indemnification will use all reasonable care to identify and
notify the indemnifying party in writing promptly concerning any situation which
presents or appears likely to present the probability of such a claim for
indemnification against the indemnifying party, but failure to do so in good
faith shall not affect the rights hereunder except to the extent the
indemnifying party is materially prejudiced thereby. As to any matter eligible
for indemnification, an indemnified party shall act reasonably and in accordance
with good faith business judgment and shall not effect any settlement or confess
judgment without the consent of the indemnifying party, which consent shall not
be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate in at its own
expense or, if it so elects, to assume the defense of any claim or suit subject
to this indemnity provision. If the indemnifying party elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
it and reasonably satisfactory to the indemnified party. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. An indemnifying party shall not effect any settlement without
the consent of the indemnified party (which shall not be withheld or delayed
unreasonably by the indemnified party) unless such settlement imposes no
liability, responsibility or other obligation upon the indemnified party and
relieves it of all fault. If the indemnifying party does not elect to assume the
defense of suit, it will reimburse the indemnified party for the reasonable fees
and expenses of counsel retained by the indemnified party and reasonably
satisfactory to the indemnifying party. The indemnity and defense provisions set
forth herein shall survive the termination of this Agreement.
The provisions of this Section 10 are subject to the provisions of Section
9 and Section 23(c) of this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST REVENUE, LOST PROFITS, AND LOST OR DAMAGED DATA, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
11. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the Company all books and
records which are customary or which are required to be kept in connection with
BISYS' services pursuant to applicable statutes, rules and regulations,
including without limitation Rules 31a-l and 31a-2 under the Investment Company
Act of 1940, as amended (the "1940 Act"). BISYS further agrees that all such
books and records shall be the property of the Company and to make such books
and records available for inspection by the Company at reasonable times or by
the Securities and Exchange Commission (the "Commission") promptly.
BISYS shall otherwise keep confidential all books and records relating to
the Fund and its shareholders, except when (i) disclosure is required by law,
(ii)
BISYS is advised by counsel that it may incur liability for failure to make a
disclosure, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, (iv) BISYS is requested to make a
disclosure by a shareholder or shareholder's agent with respect to information
concerning an account as to which such shareholder has either a legal or
beneficial interest and a legal right to such information at such time
consistent with the Company's Charter, Prospectus and applicable law, or (v) as
requested or authorized by the Company (including pursuant to its policies and
procedures). BISYS shall provide the Company with reasonable advance notice of
disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent
reasonably practicable. The provisions of this Section 11 are subject to the
provisions of Section 23(b) (Anti-Money Laundering Provisions).
12. Reports.
BISYS shall furnish to the Company and to its properly-authorized
auditors, investment advisers, examiners, distributors, broker-dealers,
underwriters, salesmen, insurance companies and others designated by the Company
in writing, such reports at such times as are prescribed pursuant to this
Agreement (or schedules to this Agreement), or as subsequently agreed upon by
the parties pursuant to an amendment to this Agreement (or schedules to this
Agreement). The Company agrees to examine each such report or copy provided to
it promptly and will report or cause to
be reported to BISYS any errors or discrepancies therein.
13. Rights of Ownership.
All computer programs, systems and procedures employed or developed by
BISYS, or on behalf of BISYS by system providers or vendors used by BISYS, to
perform services required to be provided by BISYS under this Agreement are the
property of BISYS. All records and other data maintained hereunder, excepting
such computer programs, systems and procedures, are the exclusive property of
the Company. All such records and other data which is the property of the
Company shall be furnished to the Company in appropriate form as soon as
practicable after termination of this Agreement for any reason.
14. Return of Records.
BISYS shall promptly upon the Company's demand, turn over to the Company
and cease to retain BISYS' files, records and documents created and maintained
by BISYS pursuant to this Agreement which are no longer needed by BISYS in the
performance of its services or for its legal protection. If not so turned over
to the Company, such documents and records shall be retained by BISYS, at the
expense of the Company, for six (6) years from the date of creation. At the end
of such six-year period, such records and documents shall be turned over to the
Company unless the Company authorizes in writing the destruction of such records
and documents.
15. Bank Accounts.
BISYS is hereby granted such power and authority as may be necessary to
establish one or more bank accounts for the Company with such bank or banks as
are acceptable to the Company, as may be necessary or appropriate from time to
time in connection with the transfer agency services to be performed hereunder.
The Company shall be deemed to be the customer of such bank or banks for
purposes of such accounts. To the extent that the performance of such services
hereunder shall require BISYS to disburse amounts from such accounts in payment
of dividends, redemption proceeds or for other purposes hereunder, the Company
shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
16. Representations and Warranties of the Company. The Company represents and
warrants to BISYS that:
(a) It is a corporation duly incorporated and validly existing under
the laws of the jurisdiction of its formation, and has full capacity
and authority to enter into this Agreement and to carry out its
obligations hereunder;
(b) It has all necessary authorizations, licenses and permits to
carry out its business as currently conducted;
(c) It is in compliance in all material respects with all laws and
regulations applicable to its business and operations;
(d) This Agreement has been duly authorized by the Company and, when
executed and delivered by the Company, will constitute a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the right and remedies of creditors and
secured parties;
(e) By virtue of the Charter, shares of each Fund which are redeemed
by the Company may be resold by the Company; and
(f) The Company has adopted a written anti-money laundering program,
which has been provided to BISYS pursuant to Section 19 (the "AML
Program"), and has appointed an officer of the Company as the
Company's anti-money laundering compliance officer ("AML Compliance
Officer"), (ii) the AML Program and the designation of the AML
Officer have been approved by the Board, (iii) the delegation of
certain services thereunder to BISYS, as provided in Section 23, has
been approved by the Board, and (iv) the Company will submit any
material amendments to the AML Program to BISYS for BISYS' review
and consent prior to adoption, in accordance with Section 21.
17. Representations and Warranties of BISYS.
BISYS represents and warrants to the Company that:
(a) It is a corporation duly incorporated and validly existing under
the laws of the state of Ohio, and has full capacity and authority
to enter into this Agreement and to carry out its obligations
hereunder;
(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 17 A( c)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(d) The various procedures and systems which it has implemented with
regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other
data of the Company and BISYS' equipment, facilities, and other
property used in the performance of its obligations hereunder are
reasonable and adequate and that it will make such changes therein
from time to time as are reasonably required for the secure
performance of its obligations hereunder; and
(e) This Agreement has been duly authorized by BISYS and, when
executed and delivered by BISYS, will constitute a legal, valid and
binding obligation of BISYS, enforceable against BISYS in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the right
and remedies of
creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
18. Insurance.
BISYS shall maintain a fidelity bond covering larceny and embezzlement and
an insurance policy with respect to directors and officers errors and omissions
coverage, in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Company, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Company should its
insurance coverage with respect to professional liability or errors and
omissions coverage be reduced or canceled. Such notification shall include the
date of cancellation or reduction and the reasons therefore. BISYS shall notify
the Company promptly of any material claims against it with respect to services
performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Company promptly should the total outstanding claims made by BISYS under its
insurance coverage materially impair, or threaten to materially impair, the
adequacy of its coverage.
19. Information to be Furnished by the Company and Funds.
The Company agrees to furnish to BISYS the following, upon BISYS' request,
each as amended and current as of the Effective Date:
(a) A copy of the Charter and any amendments thereto;
(b) A copy of the Company's By-laws and any amendments thereto;
(c) A copy of the resolutions of the Board regarding (i) approval of this
Agreement and authorization of a specified officer of the Company to
execute and deliver this Agreement and authorization for specified
officers of the Company to instruct BISYS hereunder; and (ii)
authorization of BISYS to act as administrator, fund accountant and
transfer agent for the Company;
(d) A certified list of all officers of the Company, with the Company's
AML Compliance Officer included among the officers therein, and any other
persons (who
may be associated with the Company or its investment 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) Copies of each of the following documents employed by the Company:
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Company or its
distributor with regard to their relationships and
transactions with shareholders of the Funds. A certificate as
to shares of the Company authorized, issued, and outstanding
as of the Effective Date and as to receipt of full
consideration by the Company for all shares outstanding;
(f) A copy of the Company's written AML Program, including any related
policies and procedures;
(g) A copy of the disclosure controls and procedures of the Funds ("Fund
DCPs")
as contemplated in Item 22 of Schedule B; and
(h) The Company's Valuation Procedures as defined in Schedule C.
20. Information Furnished by BISYS.
BISYS agrees to furnish to the Company, upon its request, evidence of the
following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this Agreement;
(b) Authorization of BISYS to act as Transfer Agent, Fund Accountant
and Administrator for the Company;
(c) The current BISYS As-of Trading Policy; and
(d) The current version of BISYS written polices and procedures with
respect to its provision on AML Services (as defined in Section 23
below).
Upon request, BISYS shall furnish a copy of the relevant provisions of its
internal policies on service of employees as executive officers of funds ("BISYS
Policies"), and any material amendments thereto, to the Company.
21. Amendments to Documents.
The Company will provide BISYS with advance notice of any material
amendments to the items set forth in Section 19. BISYS will not be responsible
for changing or conforming its services to any such amendments until BISYS has
reviewed and accepted responsibility for the relevant changes in services. BISYS
will consider such changes in good faith. In the event that any such amendment,
or change in laws applicable to the Company would require BISYS to make specific
changes to its service model, BISYS will use reasonable good faith efforts to
inform the Company of the changes that would be necessary, and set out the
estimated costs and estimated implementation timetable for any additional
services. The parties shall then in good faith agree to mutually agreeable terms
applicable to such additional service. BISYS shall furnish the Company with
written copies of any amendments to, or changes in, any of the items referred to
in this Section
22. Reliance on Amendments.
BISYS may rely on any amendments to or changes in any of the documents and
other items to be provided by the Company pursuant to Sections 19 and 21 of this
Agreement and the indemnification provisions of Section 10 hereof are applicable
to BISYS' reasonable reliance upon such amendments and/or changes. Although
BISYS is authorized to rely on the above-mentioned amendments to and changes in
the documents and other items to be provided pursuant
to Sections 19 and 21 of this Agreement, in the event the same relate to
services provided by BISYS hereunder, BISYS shall have no liability for failure
to comply with or take any action in conformity with such amendments or changes
except as provided in Section 21 or as otherwise agreed upon in writing.
23. Compliance with Laws.
(a) Prospectus and Public Offering. Except for information which is the
obligation of BISYS as set forth in Section 11 of this Agreement, and except as
provided in the services listed in the schedules to this Agreement which call
for information to be provided by BISYS for inclusion in the Prospectus, the
Company assumes full responsibility for the preparation, contents, and
distribution of each Prospectus of the Company in compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act"), the
1940 Act, and any other laws, rules and regulations of governmental authorities
having jurisdiction. Subject to its obligations herein with respect to "blue
sky" filings, BISYS shall have no obligation to take cognizance hereunder of
laws relating to the sale of the Funds' shares. The Company represents and
warrants that all shares of the Funds that are offered to the public are covered
by an effective registration statement under the 1933 Act and the 1940 Act.
(b) Anti-Money Laundering Provisions. The Company
acknowledges that it is a financial institution subject to the law
entitled Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism ("USA PATRIOT')
Act of 2001 and the Bank Secrecy Act (collectively, the "AML Acts")
and shall comply with the AML Acts and applicable regulations
adopted thereunder (collectively, the "Applicable AML Laws") in all
relevant respects, subject to the delegation of certain
responsibilities to BISYS, as provided in the next paragraph below.
The Company hereby delegates to BISYS the performance, on behalf of the
Company, of the anti-money laundering services set forth under Item 6 of
Schedule D (the "AML Services") with respect to the shareholder accounts
maintained by BISYS pursuant to this Agreement, and BISYS agrees to the
foregoing delegation and agrees to perform such services in accordance with the
Company's AML Program for the fee set forth on Schedule E to this Agreement. In
connection therewith, BISYS agrees to maintain policies
and procedures, and related internal controls, that are consistent with the
Company's AML Program and the requirement that the Company employ procedures
reasonably designed to achieve compliance with the Applicable AML Laws. BISYS'
obligations under this delegation shall be subject to Sections 19 and 21, which
require that the AML Program and any material amendments thereto be submitted to
BISYS for its review and consent prior to adoption.
The Company agrees and acknowledges that, notwithstanding the delegation
provided for in the foregoing paragraph, the Company maintains full
responsibility for ensuring that its AML Program is, and shall continue to be,
reasonably designed to ensure compliance with the Applicable AML Laws, in light
of the particular business of the Company, taking into account factors such as
its size, location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Company also acknowledges
that the performance of the AML Services involves the exercise of discretion
which in certain circumstances may result in consequences to the Company and its
shareholders (such as in the case of the reporting of suspicious activities and
the freezing of shareholder accounts). In this regard, (i) under circumstances
in which the AML Program authorizes the taking of certain actions, BISYS is
granted the discretion to take any such action as may be authorized
under the AML Program, and consultation with Company shall not be required in
connection therewith unless specifically required under the AML Program, and
(ii) the Company instructs BISYS that it may avail the Company of any safe
harbor from civil liability that may be available under Applicable AML Laws for
making a disclosure or filing a report thereunder.
As concerns Networked Level III accounts and omnibus accounts, the AML
Services performed by BISYS are subject to a more limited scope, as discussed in
the Release concerning the final rule of the Department of the Treasury, 31 CFR
103 and of the Commission, 17 CFR 270, entitled Customer Identification Programs
for Mutual Funds issued on May 9, 2003 and subsequent guidance issued jointly by
such agencies entitled Question and Answer Regarding the Mutual Fund Customer
Identification Program Rule (31 CFR 103.131) issued on August 11,2003
(c) Provision of Certifying Officers.
Subject to the provisions of this Section 23(c) and Section 23(d), BISYS
shall make BISYS employees available to the Company to serve, upon designation
as such by the Board, as the Chief Financial Officer of the Company or under
such other title to perform similar functions (each, a "Certifying Officer").
BISYS' obligation in this regard shall be met by providing an appropriately
qualified employee of BISYS (or its affiliates) who, in the exercise of his
or her duties to the Company, shall act in good faith and in a manner reasonably
believed to be in the best interests of the Company. BISYS shall select, and may
replace, the specific employee that it makes available to serve in the
designated capacities as a Certifying Officer, in BISYS' reasonable discretion,
taking into account each such person's responsibilities concerning, and
familiarity with, the Company's operations (but the description of any such
person as a Certifying Officer shall be subject to the approval of the Company).
The obligation of BISYS to provide an employee to serve in such capacity
is also subject to, and conditioned upon, the provisions of Item 20 of Schedule
B to this Agreement. Capitalized terms used but not defined in this Section 23(
c) have the respective meanings ascribed to them in Item 20 of Schedule B.
The Fund DCPs shall contain (or the Company and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification process,
and the parties shall comply with such procedures in all material respects.
Among other things, the procedures shall provide as follows:
The Company shall establish and maintain a Fund DCP Committee comprised of
persons including (at a minimum) the Company's Principal Executive Officer,
Chief Financial Officer ("CFO") and Chief Legal Officer (if any), at least one
BISYS representative other than the CFO or
Chief Compliance Officer, (if such officers are provided by BISYS), at least one
representative of the investment adviser, and such other individuals as may be
necessary or appropriate for the Fund DCP Committee to ensure the cooperation
of, and to oversee, each of the Company's agents that records, processes,
summarizes, or reports information contained in Company Reports (or other
information from which such information is derived), including BISYS and the
Other Service Providers to the Company, such as the investment adviser and
custodian. In connection therewith, the Fund DCP Committee shall assist the
Certifying Officers by requiring that sub-certifications acceptable to the
Certifying Officers be provided by the Other Service Providers.
The Fund DCP Committee shall meet prior to the filing date of each Report
to review the accuracy and completeness of the relevant Report and record its
considerations and conclusions in a written memorandum sufficient to support
conclusions pertaining to Fund DCPs as required by the instructions to Form
N-CSR and Form N-Q. In conducting its review and evaluations, the Fund DCP
Committee shall:
(i) establish a schedule to ensure that all required
disclosures in Form N-CSR and Form N-Q, including the
financial statements, for the Company are
identified and prepared in a timeframe sufficient to allow
review;
(ii) review SAS 70 Reports pertaining to BISYS and Other
Service Providers, if applicable, or in the absence of any
such reports, consider the adequacy of the sub-certifications
supplied by the service provider. In cases where the SAS 70
Report is dated more than 90 days prior to the issuance of a
Report, the DCP Committee shall request a written
representation from the service provider regarding the
continued application and effectiveness of internal controls
described in the report, or descriptions of any changes in
internal control structure, as of the date of the
representation;
(iii) consider whether there are any significant deficiencies
or material
weaknesses in the design or operation of the Fund DCPs and
internal control over financial reporting that could adversely
affect the Company's ability to record, process, summarize,
and report financial information, and in the event that any
such weaknesses or deficiencies are identified, disclose them
to the Company's Certifying Officers, the Company's audit
committee and its auditors;
(iv) consider whether, to the knowledge of each member of the
Fund DCP Committee, there has been or may have been any fraud,
whether or not material, and in the event that any such
occurrence is identified, ensure that this has been disclosed
to the Certifying Officers, so that Certifying Officers may
inform the Company's audit committee and its auditors; and
(v) determine whether there was any change in internal control
over financial reporting that occurred during the Company's
second fiscal quarter of the period covered by the Report (for
Reports on Form N-CSR) or during the most recent fiscal
quarter (for Reports on Form N-Q) that has materially affected
or is reasonably likely to materially affect, the Company's
internal control over financial reporting.
A Certifying Officer shall have the full discretion to decline to certify
a particular Report that fails to meet the standards set forth in the
Certification, and to report matters involving fraud or other failures to meet
the standards of applicable law to the audit committee of the Board.
(d) Additional Provisions Concerning Executive Officers.
It is mutually agreed and acknowledged by the parties that Certifying
Officers provided by BISYS under the provisions of this Section 23 will
constitute executive officers of the Company ("Executive Officers"). The
provisions of Section 23(c) are subject to the internal policies of BISYS
concerning the
activities of its employees and their service as officers of funds (the "BISYS
Policies"), a copy of which shall be provided to the Company upon request.
The Company's governing documents (including its Agreement and Charter and
By-Laws) and/or resolutions of the Board shall contain mandatory indemnification
provisions that are applicable to each Executive Officer, that are designed and
intended to have the effect of fully indemnifying him or her and holding him or
her harmless with respect to any claims, liabilities and costs arising out of or
relating to his or her service in good faith in a manner reasonably believed to
be in the best interests of the Company, except to the extent he or she would
otherwise be liable to the Company by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his or her office.
The Company shall provide coverage to each Executive Officer under its
directors and officers liability policy that is appropriate to the Executive
Officer's role and title, and consistent with coverage applicable to other
officers holding positions of executive management.
In appropriate circumstances, each Executive Officer shall have the
discretion to resign from his or her position, in the event that he or she
reasonably determines that there has been or is likely to be (a) a violation of
▇▇▇▇▇▇▇▇-▇▇▇▇▇, Applicable AML Laws or other Federal securities laws applicable
to the Company (the
"Applicable Securities Laws") by the Company, or (b) a material deviation by the
Company from the terms of this Agreement governing the services of such
Executive Officer, which (in either case) is not primarily caused by the failure
of such Executive Officer or BISYS to meet obligations under applicable laws and
this Agreement. In addition, each Executive Officer shall have reasonable
discretion to resign from his or her position in the event that he or she
determines that he or she has not received sufficient cooperation from the
Company or its Other Service Providers to make an informed determination
regarding any of the matters listed above.
Each Executive Officer may, and the Company shall, promptly notify BISYS
of any issue, matter or event that would be reasonably likely to result in any
claim by the Company, the Company's shareholders or any third party which
involves an allegation that any Executive Officer failed to exercise his or her
obligations to the Company in a manner consistent with applicable laws
(including but not limited to any claim that a Report failed to meet the
standards of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and other applicable laws).
Notwithstanding any provision of the Agreement that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that BISYS cannot ensure that the Company complies with Applicable
AML Laws, the Applicable Securities Laws or ▇▇▇▇▇▇▇▇-▇▇▇▇▇,
and (b) whenever an employee or agent of BISYS serves as an Executive Officer of
the Company, as long as such Executive Officer acts in good faith and in a
manner reasonably believed to be in the best interests of the Company (and would
not otherwise be liable to the Company by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of his or her office), the Company shall indemnify the Executive Officer
and BISYS and hold the Executive Officer and BISYS harmless from any loss,
liability, expenses (including reasonable attorneys fees) and damages incurred
by them arising out of or resulting to the service of such Employee/Executive
Officer as an Executive Officer of the Company.
24. 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, or at such other address as such party may from time
to time specify in writing to the other party pursuant to this Section 24:
If to the Company:
[Company to insert address and attention party]
If to BISYS:
BISYS Fund Services Ohio, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
The BISYS Group Inc.
▇▇ ▇▇▇▇ ▇▇▇., ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
25. Assignment.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties without the prior written consent of the other party;
provided, however, that either party may assign this Agreement to an affiliate
of such party without the need for such consent. This Section 25 shall not limit
or in any way affect BISYS' right to use a third party to perform obligations
pursuant to Section 2 of this Agreement. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties and their respective successors
and permitted assigns.
26. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to New York's conflicts of laws
principles, and the applicable provisions of the 1940 Act. To the extent that
the laws of the State of New York conflict with the applicable provisions of the
1940 Act, the applicable provisions of 1940 Act shall control.
27. Activities of BISYS.
The services of BISYS rendered to the Company hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and interests. It is understood that trustees, officers,
employees and Shareholders of the Company and/or Fund are or may be or become
interested in BISYS, as officers, employees or otherwise and that partners,
officers and employees of BISYS and its counsel are or may be or become
similarly interested in the Company and/or Fund, and that BISYS may be or become
interested in the Company and/or Fund as a shareholder or otherwise.
28. Privacy.
Nonpublic personal financial information relating to consumers or customers of
the Company provided by, or at the direction of the Company to BISYS, or
collected or retained by BISYS in the course of performing its duties as
transfer agent, shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person or
entity, other than affiliates of BISYS involved in servicing the Company except
at the direction of the Company or as required or permitted by law (including
Applicable AML Laws). BISYS represents, warrants and agrees that it has in place
and will maintain physical, electronic and procedural safeguards reasonably
designed to protect the security, confidentiality and integrity of, and to
prevent unauthorized access to or use of records and information relating to
consumers or customers of
the Company. The Company represents to BISYS that it has adopted a Statement of
its privacy policies and practices as required by the Commission's Regulation
S-P and agrees to provide BISYS with a copy of that statement annually.
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
as to the subject matter covered by this Agreement, and supersedes
all prior negotiations, understandings and agreements bearing upon
the subject matter covered herein.
(c) This Agreement may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall
constitute one and the same agreement.
No amendment to this Agreement shall be valid unless made in writing
and executed by both parties.
(e) If any part, term or provision of this
Agreement is held to be legal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of the
parties shall be construed and enforced as if this Agreement did not
contain such part, term or provision.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed all as of the date first above written.
Arrivato/Dow ▇▇▇▇▇ Funds
By: __________________________
Name:
Title:
BISYS Fund Services Ohio, Inc.
By:_____________________
Name:
Title:
SCHEDULE A
TO THE MASTER SERVICES
AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO, INC.
AND ARRIV A TO/DOW ▇▇▇▇▇
FUNDS
[insert list of funds] FUNDS
SCHEDULE B TO THE MASTER
SERVICES AGREEMENT
BETWEEN BISYS FUND SERVICES
OHIO, INC. AND ARRIVATO/DOW
▇▇▇▇▇ FUNDS
ADMINISTRATION SERVICES
1. Calculate contractual Fund expenses and make and control all disbursements
for the Funds, subject to review and approval of an officer of the Company or
other authorized person (designated on the list of authorized persons approved
by the Board), including administration of trustee and vendor fees and
compensation on behalf of the Company, and as appropriate;
2. Prepare, subject to review by counsel to the Company: (i) the annual update
to the Company's registration statement on Form N-IA, and (ii) supplements to
its Prospectus and Statement of Additional Information; and file any of the
foregoing with the Securities and Exchange Commission (the "SEC") upon the
request of the Company or counsel to the Company;
3. [To be removed if BISYS is not providing this service:] [Prepare such
reports, applications and documents (including reports regarding the sale and
redemption of shares in the Fund as may be required in order to comply with
Federal and state securities laws) as may be necessary or desirable to register
the shares in the Fund ("Shares") with state securities
authorities, monitor the sale of Shares for compliance with state securities
laws, and file with the appropriate state securities authorities the
registration statements and reports for the Company and the Shares and all
amendments thereto, as may be necessary or convenient to register and keep
effective the registration of the Company and the Shares with state securities
authorities to enable the Company to make a continuous offering of its Shares.
State securities ("Blue Sky") exemption services are made available at a
standard fee which is earned by BISYS based on savings obtained by the Company;]
4. Coordinate and prepare, with the assistance and approval of the Funds'
investment adviser, counsel and officers, drafts of communications to
shareholders of record of the Funds ("Shareholders"), including the annual
report to Shareholders; prepare drafts of the certified semi-annual report for
each Fund; prepare and file the final certified versions thereof on Form N-CSR;
prepare and file the Fund's Form N-SAR; and file all required notices pursuant
to Rule 24f-2;
5. Coordinate the distribution of prospectuses, supplements, proxy materials and
reports to Shareholders; and coordinate the solicitation and tabulation of
proxies (including the annual meeting of Shareholders each year, if one is
held);
6. Administer contracts on behalf of the Company with, among others, the
Company's investment adviser, distributor, custodian, transfer agent and fund
accountant;
7. Coordinate with the Company'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 Company'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 portfolios or classes, investment objectives, policies and structure, and
provide consultation related to legal and regulatory aspects of the
establishment, maintenance, and liquidation or dissolution of Funds;
12. Make available appropriate individuals to serve as officers of the Company
(to serve only in ministerial or administrative capacities relevant to BISYS'
services hereunder, except as otherwise provided in this
Agreement), upon designation as such by the Board;
13. Obtain and maintain fidelity bonds and directors and officers/errors and
omissions insurance policies for the Company in accordance with Rules 17 g-l and
17 d-l under this 1940 Act at the expense (except as otherwise provided in the
Agreement) of the Company and Funds and file the fidelity bonds and any notices
with the SEC as required under the 1940 Act, to the extent such bonds and
policies are approved by the Board;
14. Monitor and advise the Company and its Funds on their regulated investment
company status under the Internal Revenue Code of 1986, as amended. In
connection with the foregoing, prepare and send quarterly reminder letters
related to such status, and prepare quarterly compliance checklist for use by
investment adviser(s) if requested;
15. Maintain corporate records on behalf of the Company, including, but not
limited to, minute books, the Charter of the Company and By-Laws for the
Company;
16. Assist the Company in developing portfolio compliance procedures for each
Fund, and provide daily and periodic compliance monitoring services
incorporating certain of those procedures, which will include, among other
matters, compliance with investment restrictions imposed by the 1940 Act, each
Fund's investment objective, defined investment policies, and restrictions, tax
diversification, and distribution and income requirements, provided such are
determinable based upon the Fund's accounting records. In connection with the
foregoing, review quarterly compliance reports that are prepared by the
investment adviser(s), and notify appropriate Fund officers and advisor of
▇▇▇▇-to-market issues pursuant to Board-approved procedures. BISYS will also
provide the Board with quarterly results of compliance reviews;
17. Provide assistance and guidance to the Company with respect to matters
governed by or related to regulatory requirements and developments including:
monitoring regulatory and legislative developments which may affect the Company,
and assisting in strategic planning in response thereto; assisting the Company
and providing on-site personnel in responding to and providing documents for
routine regulatory examinations or investigations; and coordinating with and
taking instructions from counsel to the Company in response to such routine or
non-routine regulatory matters. The assistance to be provided with respect to
SEC inspections includes (i) rendering advice regarding proposed responses (ii)
compiling data and other information in response to SEC requests for information
and (iii) communicating with Fund management and portfolio
managers to provide status updates. In addition, BISYS will provide appropriate
assistance with respect to audits conducted by the Funds' independent auditors
including compiling data and other information as necessary;
18. Manage the preparation for Board meetings by (i) coordinating Board book
preparation, production and distribution, (ii) subject to review and approval by
the Company and its counsel, preparing Board agendas, resolutions and minutes,
(iii) preparing the relevant sections of the Board materials required to be
prepared by BISYS, (iv) assisting to gather and coordinate special materials
related to annual contract renewals and approval of Rule 12b-l for and as
directed by the trustees or fund counsel plans and related matters, (v)
attending Board meetings and recording the minutes, and (vi) performing such
other Board meeting functions as shall be agreed by the parties in writing;
19. Furnish advice and recommendations with respect to other aspects of the
business and affairs of the Funds as the Company shall request and the parties
shall agree in writing; and
20. Assist the Company in connection with its obligations under Sections 302 and
906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and Rules 30a-2 and Rule 30a-3 under the
1940 Act (collectively, with such other related regulatory provisions applicable
to the
Company, "▇▇▇▇▇▇▇▇-▇▇▇▇▇"), BISYS will internally establish and maintain
controls and procedures ("BISYS internal controls") designed to ensure
that information recorded, processed, summarized, or reported by BISYS and
its affiliates on behalf of the Company and included in financial
information certified by Company officers ("Certifying Officers") on Form
N-CSR and Form N-Q ("Reports") is (a) recorded, processed, summarized, and
reported by BISYS within the time periods specified in the SEC's rules and
forms and corresponding disclosure controls and procedures of the Funds
("Fund DCPs"), and (b) accumulated and communicated to the relevant
Certifying Officers consistent with the Fund DCPs.
If requested by Certifying Officers with respect to a fiscal period during
which BISYS serves or served as financial administrator, BISYS will provide a
sub-certification consistent with the requirements of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ (or, if applicable with respect to a
Report, inform the Certifying Officers of the reasons why the statements in such
a certification would not be accurate). In rendering such sub-certifications
concerning Company Reports, BISYS may (a) limit its representations to
information prepared, processed and reported by BISYS; (b)
rely upon and assume the accuracy of the information provided by officers and
other authorized agents of the Company, including all Other Service Providers to
the Company, and compliance by such officers and agents with the Fund DCPs,
including but not limited to, the Company's investment adviser(s) and custodian;
and (c) assume that the Company has selected the appropriate accounting policies
for the Fund(s).
The Company shall assist and cooperate with BISYS (and shall use its best
efforts to cause its officers, investment advisers and other service providers
to assist and cooperate with BISYS) to facilitate the delivery of information
requested by BISYS in connection with the preparation of the Company's Form
N-CSR and Form N-Q, including Company financial statements, so that BISYS may
submit a draft Report to the Company's Disclosure Controls and Procedures
Committee ("Fund DCP Committee") prior to the date the relevant Report is to be
filed. The Certifying Officers and the Chief Legal Officer (if any) of the
Company shall be deemed to constitute the Fund DCP Committee in cases in which
no other Fund DCP Committee has been designated or is operative. In connection
with its review and evaluations, the Fund DCP Committee shall establish a
schedule to ensure that all required disclosures in Form N-CSR and in the
financial statements for each Fund are identified and prepared in a timeframe
sufficient to allow review by the Fund DCP Committee at least 10 days prior to
the date the relevant report is to be filed. At the request of the Company or
its Certifying Officers, BISYS shall provide reasonable administrative
assistance to the Company in connection with
obtaining service provider sub-certifications, SAS-70 reports on internal
controls, and any applicable representations to bring such certifications
current to the end of the reporting period, and in preparing summaries of issues
raised in such documents.
The Company shall, in its own capacity, take all reasonably necessary and
appropriate measures to comply with its obligations under ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
Without limitation of the foregoing, except for those obligations which are
expressly delegated to or assumed by BISYS in this Agreement, the Company shall
maintain responsibility for, and shall support and facilitate the role of each
Certifying Officer and the Fund DCP Committee in, designing and maintaining the
Fund DCPs in accordance with applicable laws, including (a) ensuring that the
Fund DCP Committee and/or Certifying Officers obtain and review
sub-certifications and reports on internal controls from the Company's
investment adviser(s) and other service providers, if any, sufficiently in
advance of the date upon which the relevant financial statements must be
finalized by BISYS (in order to print, distribute and/or file the same
hereunder), (b) evaluating of the effectiveness of the design and operation of
the Fund DCP, under the supervision, and with the participation of, the
Certifying Officers, within the requisite time frame prior to the filing of each
Report, and (c) ensuring that its Certifying Officers render the requisite
certifications or take such other actions as may be permitted or required under
applicable laws.
22. Coordinate formulating and filing of the Funds' proxy voting records
(as approved by the investment adviser) on Form N-PX.
23. File holdings reports on Form N-Q as required at the end of the first
and third fiscal quarters of each year.
24. Prepare quarterly brokerage allocation compliance checklist and
supporting documentation for use by investment adviser(s), as requested.
25. Oversee/coordinate Trustee compensation.
26. Prepare and distribute Trustee/Officer Questionnaires, review
completed Questionnaires and resolve any open issues with the Company and
counsel.
27. Review proxy statements prepared by counsel.
28. Prepare and file amendments to the Articles of Incorporation as
necessary.
29. Prepare amendments to the By-Laws.
SCHEDULE C
TO THE MASTER SERVICES
AGREEMENT BETWEEN BISYS
FUND SERVICES OHIO, INC.
AND ARRIV ATOIDOW ▇▇▇▇▇ FUNDS
FUND ACCOUNTING SERVICES
(a) BISYS will keep and maintain the following books and records of each
Fund pursuant to Rule 31 a-I (the "Rule") under the 1940 Act: 1.
1. Journals containing an itemized daily record in detail of all purchases
and sales of securities, all receipts and disbursements of cash and all other
debits and credits, as required by subsection (b)(1) of the Rule;
2. General and auxiliary ledgers reflecting all asset, liability, reserve,
capital, income and expense accounts, including interest accrued and interest
received, as required by subsection (b)(2)(i) of the Rule;
3. Separate ledger accounts required by subsection (b)(2)(ii) and (iii)
of the Rule; and
4. A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the Rule.
(b) In addition to the maintenance of the books and records specified above,
BISYS shall perform the following accounting services for each Fund:
1. Allocate income and expense and calculate the net asset value per share
("NA V") of each class of shares offered by each Fund in accordance with the
relevant provisions of the applicable Prospectus of each Fund and applicable
regulations under the 1940 Act;
2. Apply securities pricing
information as required or authorized under the terms of the
valuation policies and procedures of the Company ("Valuation
Procedures"), including (A) pricing information from independent
pricing services, with respect to securities for which market
quotations are readily available, (B) if applicable to a particular
Fund or Funds, fair value pricing information or adjustment factors
from independent fair value
pricing services or other vendors approved by the Company
(collectively, "Fair Value Information Vendors") with respect to
securities for which market quotations are not readily available,
for which a significant event has occurred following the close of
the relevant market but prior to the Fund's pricing time, or which
are otherwise required to be made subject to a fair value
determination under the Valuation Procedures,
and (C) prices obtained from each Fund's investment adviser or other
designee, as approved by the Board;
3. Coordinate the preparation of reports that are prepared or provided by
Fair Value Information Vendors which help the Company to monitor and evaluate
its use of fair value pricing information under its Valuation Procedures;
4. Verify and reconcile with the Funds'
custodian all daily trade activity;
5. Compute, as appropriate, each Fund's net income and capital gains,
dividend payables, dividend factors, 7-day yields, 7-day effective yields,
30-day yields, and weighted average portfolio maturity; (and other yields or
standard or non-standard performance information as mutually agreed);
6. Review daily the net asset value calculation
and dividend factor (if any) for each Fund prior to release to shareholders,
check and confirm the net asset values and dividend factors for reasonableness
and deviations, and distribute net asset values and yields to NASDAQ; and as
agreed, in certain cases, to newspapers;
7. If applicable, report to the Company the periodic market pricing of
securities in any money market funds, with the
comparison to the amortized cost basis;
8. Determine and report unrealized appreciation and depreciation on
securities held in variable net asset value funds;
9. Amortize premiums and accrete discounts on fixed income securities
purchased at a price other than face value, if requested by the Company;
10. Update fund accounting system to reflect rate changes, as received
from a
Fund's investment adviser, on variable interest rate instruments;
11. Post Fund transactions to appropriate categories;
12. Accrue expenses of each Fund according to instructions received from
the Company's Administrator, and submit changes to accruals and expense items to
authorized officers of the Company (who are not BISYS employees) for review and
approval;
13. Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income and expense
accounts;
14. Provide accounting reports in connection with and coordinate with
independent auditors concerning the Company's regular annual audit, and other
audits and examinations by regulatory agencies; and
15. Provide such periodic reports as
the parties shall agree upon, as set forth in a separate schedule.
16. Provide a representative (in a non-voting capacity) for the Company's
Pricing Committee, if any; and
17. Assist the Company in identifying instances where market prices are
not readily available, or are unreliable, within parameters set forth in the
Company's Valuation Procedures.
(c) BISYS shall also perform the following additional accounting services for
each Fund:
1. Provide monthly a hard copy of the unaudited financial statements
described below, upon request of the Company. The unaudited financial statements
will include the following items:
A. Unaudited Statement of Assets and Liabilities,
B. Unaudited Statement of Operations,
C. Unaudited Statement of Changes in Net Assets, and
D. Unaudited Condensed Financial Information
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 Company's semi-annual reports with the SEC on Form N-SAR and
Form N-CSR;
C. the Company's schedules of investments for filing with the SEC on
Form N-Q;
D. the Company's annual and semi-annual shareholder reports and
quarterly Board meetings;
E. registration statements on Form N-IA and other filings relating
to the registration of shares;
F. BISYS' monitoring of each Fund's status as a regulated investment
company under Subchapter M of the Internal Revenue Code of 1986, as amended;
G. annual audit by the Company's auditors; and
H. examinations performed by the SEC.
3. Calculate turnover and expense ratio.
4. Prepare schedule of Capital Gains and Losses.
5. Provide daily cash report.
6. Maintain and report security positions and transactions in accounting system.
7. Prepare Broker Commission Report.
8. Monitor expense limitations.
9. Monitor wash sales.
10. Provide financial information otherwise maintained by BISYS that may be
relevant to the investment adviser's reports on soft dollar brokerage
transactions.
11. Maintain list of failed trades.
12. Provide unrealized gain/loss report. 33
SCHEDULE D
TO THE MASTER SERVICES
AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO,
INC. AND ARRIVATO/DOW ▇▇▇▇▇
FUNDS
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 1 Ob-l 0 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,
upon request.
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) Where appropriate information is available, provide reports for
tracking rights of accumulation and purchases made under a Letter of Intent.
(b) Calculate fees due under 12b-l plans for distribution and marketing
expenses.
(c) Provide for payment of commission on direct shareholder purchases in a
load fund.
(d) Calculate redemption fees, as appropriate.
5. Shareholder Account Maintenance
(a) Maintain all shareholder records for each account in the Company.
(b) Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
(a) Where appropriate and information is available, verify shareholder
identity upon opening new accounts.
(b) Monitor, identify and report shareholder transactions and identify and
report suspicious activities that are required to be so identified and reported,
and provide other required reports to the Securities and Exchange Commission,
the U.S. Treasury Department, the Internal Revenue Service or each agency's
designated agent, in each case consistent with the Company's AML Program.
(c) Place holds on transactions in shareholder accounts or freeze assets
in shareholder accounts, as provided in the Company's AML Program.
(d) Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
(e) Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Company's AML Program, and make the same available
for inspection by (i) the Company's AML Compliance Officer, (ii) any auditor of
the Company's AML
Program or related procedures, policies or controls that has been designated by
the Company in writing, or (iii) regulatory or law enforcement authorities, and
otherwise make said records or other J documents available at the direction of
the Company's AML Compliance Officer.
[If applicable; remove if BISYS will not be providing]
[7. Blue Sky Services Prepare such reports, applications and documents
(including reports regarding the sale and redemption of shares in the Company as
may be required in order to comply with Federal and state securities laws) as
maybe necessary or desirable to register the shares in the Company ("Shares")
with state securities authorities, monitor the sale of Shares for compliance
with state securities laws, and file with the appropriate state securities
authorities the registration statements and reports for the Company and the
Shares and all amendments thereto, as may be necessary or convenient to register
and keep effective the registration of the Company and the Shares with state
securities authorities to enable the Company to make a continuous offering of
its Shares. State securities ("Blue Sky") exemption services are made available
at a standard fee which is earned by BISYS based on exemptions obtained by the
Company.]
8. Services Related to Shareholder Service Agreements. Coordinate the
implementation of service arrangements covered by Shareholder
Service Plans adopted by the Board 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 Company'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;
TRANSFER AGENCY REPRESENTATION
Following each quarterly period, BISYS will provide a representation to
the following effect pertaining to the AML Services rendered by BISYS hereunder
during such quarterly period:
1. Performance of good order review for all new and reregistered accounts;
2. Performance of acceptance review for all monetary instruments received;
3. Administration of signature guarantee policy in accordance with
prospectus requirements;
4. If applicable, administration of escrow hold policy in accordance with
prospectus requirements;
5. Verification of customer address changes;
6. Verification of customer identification for all new accounts and all
name changes on existing accounts;
7. Monitoring of all purchase transactions made with cash equivalents
totaling in excess of $10,000. The number of Form 8300 reports filed during the
period will be reported;
8. Monitoring of all accounts for suspicious activity. The number of Form
SAR reports filed during the period will be reported;
9. Review of shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental organizations, such as
the Office of Foreign Asset Control. The number of accounts frozen and otherwise
reported to authorities during the period will be reported;
10. Creation of the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
11. Maintenance all records and other documentation related to shareholder
accounts and transactions required to be prepared and maintained pursuant to the
Company's AML program for all BISYS transfer agent services.
The following will be provided in such representation if the Company falls
under the related USA PATRIOT Act of 2001 provisions:
12. Performance of the required due diligence to help prevent the
opening of any accounts for foreign shell banks during the period either
directly or through correspondent accounts.
13. Performance of the required due diligence on any new correspondent
accounts opened during the period.
SCHEDULE E
TO THE MASTER SERVICES
AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO,
INC. AND ARRIVATO/DOW ▇▇▇▇▇
FUNDS
FEES
The Company shall pay BISYS on the first business day of each month, or as
otherwise set forth below, fees for administration, fund accounting and transfer
agency services, determined at the annual rates set forth below.
Annual Asset-Based Fee
0.20% of the first $300 million in aggregate net assets of all Funds; plus
0.15% of aggregate net assets of all Funds from over $300 million to $500
million; plus
0.10% of aggregate net assets of all Funds from over $500 million to $1
billion; plus
0.075% of aggregate net assets of all Funds over $1 billion
Annual Per-Account Fees*:
NSCC/Automated Accounts (charged on open accounts**)
Number of Accounts Annual Fee Per Account
0-15,000
$0
15,001 - 50,000
$12
100,001 and above
$10
50,001 - 100,000
$8
Direct Retail Accounts (charged on open accounts**)
NUMBER OF ACCOUNTS Annual Fee Per Account
0 - 5,000
$0
5,001 - 25,000
$19
25,001 - 50,000
$18
50,001 and above
$16
*Per-account fees are tiered. For example, for 55,000 NSCC accounts, the annual
peraccount fee would be $470,000 ($0 on the first 15,000 accounts, plus $12 per
account on the next 35,000 accounts, plus $10 per account on the next 5,000
accounts).
**Closed accounts will be charged an annual fee of$2 per closed account. For
these purposes, the following categories constitute an open account on the BISYS
system in anyone month: open account with balance, open account with zero
balance, or 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.
AML Fees
Annual Fees
Program servicing: $4,500 for the first 50,000 accounts,
plus $2,500 for accounts in excess of 50,000
(to be billed in equal monthly installments)
Early Warning annual fee $575.00
Early Warning per record cost: $0.22
Equifax - per request cost $5.00
Early Warning searches for Networked Level III are conducted and fees applied
every three weeks.
Fair Value Support Services Fees
As compensation for Fair Value Support Services (the services set
forth in subsections (b)2 and (b)3 (as they relate to fair value
determinations) of Schedule C to this Agreement), BISYS shall
receive the following annual servicing fee for each Fund that the
Company designates as being subject to fair value determinations and
for which Fair Value Support Services are to be provided by BISYS:
One-time Development Fee, due upon the execution of this Agreement:
$10,000
Annual Fee for Fair Value Support Services to be provided by BISYS:
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 Fair Value Support Services Fees do not include out of pocket costs. BISYS
will also be reimbursed by the Company 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.
Form N-Q Filing Fee
Per Fund per filing: $3,000
Annual Minimum Fee:
The Asset-Based Fees and Per-Account Fees set forth above are
subject to an annual minimum of $115,000 in year 1 and $250,000 in
year 2. Other fees payable to BISYS (e.g., fees for distribution
services, anti-money laundering and fair value services,
ComplianceEdge, etc.), whether under this Agreement or otherwise,
will not count towards this minimum
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 this Agreement.
COMPLIANCE SERVICES ADDENDUM TO
MASTER SERVICES AGREEMENT
This Addendum (the "Addendum") to the Master Services Agreement
("Agreement") is made as of July [ ], 2005 between BISYS Fund Services Ohio,
Inc. ("BISYS") and Arrivato/Dow ▇▇▇▇▇ Funds (the "Company"). Capitalized terms
used in this Addendum without definition have the meanings given to such terms
in the Agreement.
WHEREAS, BISYS performs certain services for the Company under the
Agreement; 0
WHEREAS, the Company desires that BISYS provide certain compliance
services under the MSA;
WHEREAS, BISYS is willing to provide such services on the terms and
conditions set forth in this Addendum; and
NOW, THEREFORE, in consideration of the covenants herein contained, the
Company and BISYS hereby agree as follows:
1. Compliance Services.
(a) The parties mutually agree to coordinate and cooperate in connection
with the creation and implementation of written compliance polices and
procedures (collectively, the "Fund Compliance Program") which, in the
aggregate, shall be deemed by the Board to be reasonably designed to prevent the
Company from violating the provisions of Applicable Securities Laws, as required
under Rule 38a-l under the 1940 Act.
(b) BISYS will provide the following services in relation to the Fund
Compliance Program during the term of this Addendum, as part of BISYS' Service
Provider Compliance Program: (i) provide support services to the Chief
Compliance Officer of the Company, including support for conducting an annual
review of the Fund Compliance Program; (ii) assist in developing standards for
reports to the Board by BISYS; and (iii) assist in preparing or providing
documentation for the Board to make findings and conduct reviews pertaining to
the Fund Compliance Program and compliance programs and related policies and
procedures of BISYS.
(c) Notwithstanding anything in this Addendum to the contrary, all
obligations of BISYS in this Addendum shall automatically terminate upon
(i) any termination of the MSA, or (ii) any termination of the administrative
services provided under the MSA.
2. Fees and Expenses
(a) BISYS shall be entitled to receive from the Company the amounts set
forth on Schedule A to this Addendum, in addition to all fees and expenses
charged by BISYS under the MSA.
(b) In addition to paying BISYS the fees set forth in Schedule A, the
Company agrees to reimburse BISYS for all of its actual out-of-pocket expenses
reasonably incurred in providing services under this Addendum, including but not
limited to the costs incurred by BISYS in connection with the Fund Compliance
Program, including those incurred in providing reports to the Chief Compliance
Officer under the Fund Compliance Program and costs in providing reports to, and
attending meetings of, the Board.
3. Information to be Furnished by the Company
(a) The Company has furnished or shall promptly furnish to BISYS copies of
the Fund Compliance Program or the various policies and procedures of the
Company that have been adopted through the date hereof which pertain to
compliance matters that are required to be covered by the Fund Compliance
Program, as amended and current as of the date of this Addendum.
(b) The Company shall furnish BISYS written copies of any amendments to,
or changes in, the items referred to in Section 3(a) hereof, promptly after such
amendments or changes become effective. In addition, the Company agrees that no
amendments will be made to the Fund Compliance Program which might have the
effect of changing the procedures employed by BISYS in providing the services
agreed to hereunder or which amendment might affect the duties of BISYS
hereunder unless the Company first obtains BISYS' written approval of such
amendments or changes, which approval shall not be withheld unreasonably.
(c) BISYS may rely on all documents furnished to it by the Company and its
agents in connection with the services to be provided under this Addendum,
including any amendments to or changes in any of the items to be provided by the
Company pursuant to Section 3(b), and shall be entitled to indemnification in
accordance with Section 8 below with regard to such reliance.
4. Miscellaneous
(a) Except as expressly provided in this Addendum, the provisions ofthe
MSA remain unchanged and in full force and effect.
(b) The provisions set forth in this Addendum supersede all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including any conflicting provisions of the MSA.
(c) No amendment or modification to this Addendum shall be valid unless
made in writing and executed by both parties hereto.
(d) Paragraph headings in this Addendum are included for convenience only
and are not to be used to construe or interpret this Addendum.
(e) This Addendum 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.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to
be duly executed all as of the day and year first above written.
Arrivato/Dow ▇▇▇▇▇ Funds
By:_______________
Name:
Title:
BISYS Fund Services Ohio, Inc.
By:_________________
Name:
Title:
SCHEDULE A TO
COMPLIANCE SERVICES ADDENDUM TO
MASTER SERVICES AGREEMENT
SERVICE PROVIDER COMPLIANCE PROGRAM ANNUAL FEES
First year $65,000
Second year $75,000
Third year $85,000
After third year To be agreed by the parties
The fees set forth above shall be payable in equally monthly installments.
rely upon and assume the accuracy of the information provided by officers and
other authorized agents of the Company, including all Other Service Providers to
the Company, and compliance by such officers and agents with the Fund DCPs,
including but not limited to, the Company's investment adviser(s) and custodian;
and (c) assume that the Company has selected the appropriate accounting policies
for the Fund(s).
The Company shall assist and cooperate with BISYS (and shall use its best
efforts to cause its officers, investment advisers and other service providers
to assist and cooperate with BISYS) to facilitate the delivery of information
requested by BISYS in connection with the preparation of the Company's Form
N-CSR and Form N-Q, including Company financial statements, so that BISYS may
submit a draft Report to the Company's Disclosure Controls and Procedures
Committee ("Fund DCP Committee") prior to the date the relevant Report is to be
filed. The Certifying Officers and the Chief Legal Officer (if any) of the
Company shall be deemed to constitute the Fund DCP Committee in cases in which
no other Fund DCP Committee has been designated or is operative. In connection
with its review and evaluations, the Fund DCP Committee shall establish a
schedule to ensure that all required disclosures in Form N-CSR and in the
financial statements for each Fund are identified and prepared in a timeframe
sufficient to allow review by the Fund DCP Committee at least 10 days prior to
the date the relevant report is to be filed. At the request of the Company or
its Certifying Officers, BISYS shall provide reasonable administrative
assistance to the Company in connection with
obtaining service provider sub-certifications, SAS-70 reports on internal
controls, and any applicable representations to bring such certifications
current to the end of the reporting period, and in preparing summaries of issues
raised in such documents.
The Company shall, in its own capacity, take all reasonably necessary and
appropriate measures to comply with its obligations under ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
Without limitation of the foregoing, except for those obligations which are
expressly delegated to or assumed by BISYS in this Agreement, the Company shall
maintain responsibility for, and shall support and facilitate the role of each
Certifying Officer and the Fund DCP Committee in, designing and maintaining the
Fund DCPs in accordance with applicable laws, including (a) ensuring that the
Fund DCP Committee and/or Certifying Officers obtain and review
sub-certifications and reports on internal controls from the Company's
investment adviser(s) and other service providers, if any, sufficiently in
advance of the date upon which the relevant financial statements must be
finalized by BISYS (in order to print, distribute and/or file the same
hereunder), (b) evaluating of the effectiveness of the design and operation of
the Fund DCP, under the supervision, and with the participation of, the
Certifying Officers, within the requisite time frame prior to the filing of each
Report, and (c) ensuring that its Certifying Officers render the requisite
certifications or take such other actions as may be permitted or required under
applicable laws.
22. Coordinate formulating and filing of the Funds' proxy voting records
(as approved by the investment adviser) on Form N-PX.
23. File holdings reports on Form N-Q as required at the end of the first
and third fiscal quarters of each year.
24. Prepare quarterly brokerage allocation compliance checklist and
supporting documentation for use by investment adviser(s), as requested.
25. Oversee/coordinate Trustee compensation.
26. Prepare and distribute Trustee/Officer Questionnaires, review
completed Questionnaires and resolve any open issues with the Company and
counsel.
27. Review proxy statements prepared by counsel.
28. Prepare and file amendments to the Articles of Incorporation as
necessary.
29. Prepare amendments to the By-Laws.
SCHEDULE C
TO THE MASTER SERVICES
AGREEMENT BETWEEN BISYS
FUND SERVICES OHIO, INC.
AND ARRIV ATOIDOW ▇▇▇▇▇ FUNDS
FUND ACCOUNTING SERVICES
(a) BISYS will keep and maintain the following books and records of each
Fund pursuant to Rule 31 a-I (the "Rule") under the 1940 Act: 1.
1. Journals containing an itemized daily record in detail of all purchases
and sales of securities, all receipts and disbursements of cash and all other
debits and credits, as required by subsection (b)(1) of the Rule;
2. General and auxiliary ledgers reflecting all asset, liability, reserve,
capital, income and expense accounts, including interest accrued and interest
received, as required by subsection (b)(2)(i) of the Rule;
3. Separate ledger accounts required by subsection (b)(2)(ii) and (iii)
of the Rule; and
4. A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the Rule.
(b) In addition to the maintenance of the books and records specified above,
BISYS shall perform the following accounting services for each Fund:
1. Allocate income and expense and calculate the net asset value per share
("NA V") of each class of shares offered by each Fund in accordance with the
relevant provisions of the applicable Prospectus of each Fund and applicable
regulations under the 1940 Act;
2. Apply securities pricing
information as required or authorized under the terms of the
valuation policies and procedures of the Company ("Valuation
Procedures"), including (A) pricing information from independent
pricing services, with respect to securities for which market
quotations are readily available, (B) if applicable to a particular
Fund or Funds, fair value pricing information or adjustment factors
from independent fair value
pricing services or other vendors approved by the Company
(collectively, "Fair Value Information Vendors") with respect to
securities for which market quotations are not readily available,
for which a significant event has occurred following the close of
the relevant market but prior to the Fund's pricing time, or which
are otherwise required to be made subject to a fair value
determination under the Valuation Procedures,
and (C) prices obtained from each Fund's investment adviser or other
designee, as approved by the Board;
3. Coordinate the preparation of reports that are prepared or provided by
Fair Value Information Vendors which help the Company to monitor and evaluate
its use of fair value pricing information under its Valuation Procedures;
4. Verify and reconcile with the Funds'
custodian all daily trade activity;
5. Compute, as appropriate, each Fund's net income and capital gains,
dividend payables, dividend factors, 7-day yields, 7-day effective yields,
30-day yields, and weighted average portfolio maturity; (and other yields or
standard or non-standard performance information as mutually agreed);
6. Review daily the net asset value calculation
and dividend factor (if any) for each Fund prior to release to shareholders,
check and confirm the net asset values and dividend factors for reasonableness
and deviations, and distribute net asset values and yields to NASDAQ; and as
agreed, in certain cases, to newspapers;
7. If applicable, report to the Company the periodic market pricing of
securities in any money market funds, with the
comparison to the amortized cost basis;
8. Determine and report unrealized appreciation and depreciation on
securities held in variable net asset value funds;
9. Amortize premiums and accrete discounts on fixed income securities
purchased at a price other than face value, if requested by the Company;
10. Update fund accounting system to reflect rate changes, as received
from a
Fund's investment adviser, on variable interest rate instruments;
11. Post Fund transactions to appropriate categories;
12. Accrue expenses of each Fund according to instructions received from
the Company's Administrator, and submit changes to accruals and expense items to
authorized officers of the Company (who are not BISYS employees) for review and
approval;
13. Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income and expense
accounts;
14. Provide accounting reports in connection with and coordinate with
independent auditors concerning the Company's regular annual audit, and other
audits and examinations by regulatory agencies; and
15. Provide such periodic reports as
the parties shall agree upon, as set forth in a separate schedule.
16. Provide a representative (in a non-voting capacity) for the Company's
Pricing Committee, if any; and
17. Assist the Company in identifying instances where market prices are
not readily available, or are unreliable, within parameters set forth in the
Company's Valuation Procedures.
(c) BISYS shall also perform the following additional accounting services for
each Fund:
1. Provide monthly a hard copy of the unaudited financial statements
described below, upon request of the Company. The unaudited financial statements
will include the following items:
A. Unaudited Statement of Assets and Liabilities,
B. Unaudited Statement of Operations,
C. Unaudited Statement of Changes in Net Assets, and
D. Unaudited Condensed Financial Information
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 Company's semi-annual reports with the SEC on Form N-SAR and
Form N-CSR;
C. the Company's schedules of investments for filing with the SEC on
Form N-Q;
D. the Company's annual and semi-annual shareholder reports and
quarterly Board meetings;
E. registration statements on Form N-IA and other filings relating
to the registration of shares;
F. BISYS' monitoring of each Fund's status as a regulated investment
company under Subchapter M of the Internal Revenue Code of 1986, as amended;
G. annual audit by the Company's auditors; and
H. examinations performed by the SEC.
3. Calculate turnover and expense ratio.
4. Prepare schedule of Capital Gains and Losses.
5. Provide daily cash report.
6. Maintain and report security positions and transactions in accounting system.
7. Prepare Broker Commission Report.
8. Monitor expense limitations.
9. Monitor wash sales.
10. Provide financial information otherwise maintained by BISYS that may be
relevant to the investment adviser's reports on soft dollar brokerage
transactions.
11. Maintain list of failed trades.
12. Provide unrealized gain/loss report. 33
SCHEDULE D
TO THE MASTER SERVICES
AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO,
INC. AND ARRIVATO/DOW ▇▇▇▇▇
FUNDS
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 1 Ob-l 0 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,
upon request.
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) Where appropriate information is available, provide reports for
tracking rights of accumulation and purchases made under a Letter of Intent.
(b) Calculate fees due under 12b-l plans for distribution and marketing
expenses.
(c) Provide for payment of commission on direct shareholder purchases in a
load fund.
(d) Calculate redemption fees, as appropriate.
5. Shareholder Account Maintenance
(a) Maintain all shareholder records for each account in the Company.
(b) Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
(a) Where appropriate and information is available, verify shareholder
identity upon opening new accounts.
(b) Monitor, identify and report shareholder transactions and identify and
report suspicious activities that are required to be so identified and reported,
and provide other required reports to the Securities and Exchange Commission,
the U.S. Treasury Department, the Internal Revenue Service or each agency's
designated agent, in each case consistent with the Company's AML Program.
(c) Place holds on transactions in shareholder accounts or freeze assets
in shareholder accounts, as provided in the Company's AML Program.
(d) Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
(e) Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Company's AML Program, and make the same available
for inspection by (i) the Company's AML Compliance Officer, (ii) any auditor of
the Company's AML
Program or related procedures, policies or controls that has been designated by
the Company in writing, or (iii) regulatory or law enforcement authorities, and
otherwise make said records or other J documents available at the direction of
the Company's AML Compliance Officer.
[If applicable; remove if BISYS will not be providing]
[7. Blue Sky Services Prepare such reports, applications and documents
(including reports regarding the sale and redemption of shares in the Company as
may be required in order to comply with Federal and state securities laws) as
maybe necessary or desirable to register the shares in the Company ("Shares")
with state securities authorities, monitor the sale of Shares for compliance
with state securities laws, and file with the appropriate state securities
authorities the registration statements and reports for the Company and the
Shares and all amendments thereto, as may be necessary or convenient to register
and keep effective the registration of the Company and the Shares with state
securities authorities to enable the Company to make a continuous offering of
its Shares. State securities ("Blue Sky") exemption services are made available
at a standard fee which is earned by BISYS based on exemptions obtained by the
Company.]
8. Services Related to Shareholder Service Agreements. Coordinate the
implementation of service arrangements covered by Shareholder
Service Plans adopted by the Board 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 Company'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;
TRANSFER AGENCY REPRESENTATION
Following each quarterly period, BISYS will provide a representation to
the following effect pertaining to the AML Services rendered by BISYS hereunder
during such quarterly period:
1. Performance of good order review for all new and reregistered accounts;
2. Performance of acceptance review for all monetary instruments received;
3. Administration of signature guarantee policy in accordance with
prospectus requirements;
4. If applicable, administration of escrow hold policy in accordance with
prospectus requirements;
5. Verification of customer address changes;
6. Verification of customer identification for all new accounts and all
name changes on existing accounts;
7. Monitoring of all purchase transactions made with cash equivalents
totaling in excess of $10,000. The number of Form 8300 reports filed during the
period will be reported;
8. Monitoring of all accounts for suspicious activity. The number of Form
SAR reports filed during the period will be reported;
9. Review of shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental organizations, such as
the Office of Foreign Asset Control. The number of accounts frozen and otherwise
reported to authorities during the period will be reported;
10. Creation of the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
11. Maintenance all records and other documentation related to shareholder
accounts and transactions required to be prepared and maintained pursuant to the
Company's AML program for all BISYS transfer agent services.
The following will be provided in such representation if the Company falls
under the related USA PATRIOT Act of 2001 provisions:
12. Performance of the required due diligence to help prevent the
opening of any accounts for foreign shell banks during the period either
directly or through correspondent accounts.
13. Performance of the required due diligence on any new correspondent
accounts opened during the period.
SCHEDULE E
TO THE MASTER SERVICES
AGREEMENT BETWEEN
BISYS FUND SERVICES OHIO,
INC. AND ARRIVATO/DOW ▇▇▇▇▇
FUNDS
FEES
The Company shall pay BISYS on the first business day of each month, or as
otherwise set forth below, fees for administration, fund accounting and transfer
agency services, determined at the annual rates set forth below.
Annual Asset-Based Fee
0.20% of the first $300 million in aggregate net assets of all Funds; plus
0.15% of aggregate net assets of all Funds from over $300 million to $500
million; plus
0.10% of aggregate net assets of all Funds from over $500 million to $1
billion; plus
0.075% of aggregate net assets of all Funds over $1 billion
Annual Per-Account Fees*:
NSCC/Automated Accounts (charged on open accounts**)
Number of Accounts Annual Fee Per Account
0-15,000
$0
15,001 - 50,000
$12
100,001 and above
$10
50,001 - 100,000
$8
Direct Retail Accounts (charged on open accounts**)
NUMBER OF ACCOUNTS Annual Fee Per Account
0 - 5,000
$0
5,001 - 25,000
$19
25,001 - 50,000
$18
50,001 and above
$16
*Per-account fees are tiered. For example, for 55,000 NSCC accounts, the annual
peraccount fee would be $470,000 ($0 on the first 15,000 accounts, plus $12 per
account on the next 35,000 accounts, plus $10 per account on the next 5,000
accounts).
**Closed accounts will be charged an annual fee of$2 per closed account. For
these purposes, the following categories constitute an open account on the BISYS
system in anyone month: open account with balance, open account with zero
balance, or 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.
AML Fees
Annual Fees
Program servicing: $4,500 for the first 50,000 accounts,
plus $2,500 for accounts in excess of 50,000
(to be billed in equal monthly installments)
Early Warning annual fee $575.00
Early Warning per record cost: $0.22
Equifax - per request cost $5.00
Early Warning searches for Networked Level III are conducted and fees applied
every three weeks.
Fair Value Support Services Fees
As compensation for Fair Value Support Services (the services set
forth in subsections (b)2 and (b)3 (as they relate to fair value
determinations) of Schedule C to this Agreement), BISYS shall
receive the following annual servicing fee for each Fund that the
Company designates as being subject to fair value determinations and
for which Fair Value Support Services are to be provided by BISYS:
One-time Development Fee, due upon the execution of this Agreement:
$10,000
Annual Fee for Fair Value Support Services to be provided by BISYS:
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 Fair Value Support Services Fees do not include out of pocket costs. BISYS
will also be reimbursed by the Company 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.
Form N-Q Filing Fee
Per Fund per filing: $3,000
Annual Minimum Fee:
The Asset-Based Fees and Per-Account Fees set forth above are
subject to an annual minimum of $115,000 in year 1 and $250,000 in
year 2. Other fees payable to BISYS (e.g., fees for distribution
services, anti-money laundering and fair value services,
ComplianceEdge, etc.), whether under this Agreement or otherwise,
will not count towards this minimum
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 this Agreement.
COMPLIANCE SERVICES ADDENDUM TO
MASTER SERVICES AGREEMENT
This Addendum (the "Addendum") to the Master Services Agreement
("Agreement") is made as of July [ ], 2005 between BISYS Fund Services Ohio,
Inc. ("BISYS") and Arrivato/Dow ▇▇▇▇▇ Funds (the "Company"). Capitalized terms
used in this Addendum without definition have the meanings given to such terms
in the Agreement.
WHEREAS, BISYS performs certain services for the Company under the
Agreement; 0
WHEREAS, the Company desires that BISYS provide certain compliance
services under the MSA;
WHEREAS, BISYS is willing to provide such services on the terms and
conditions set forth in this Addendum; and
NOW, THEREFORE, in consideration of the covenants herein contained, the
Company and BISYS hereby agree as follows:
1. Compliance Services.
(a) The parties mutually agree to coordinate and cooperate in connection
with the creation and implementation of written compliance polices and
procedures (collectively, the "Fund Compliance Program") which, in the
aggregate, shall be deemed by the Board to be reasonably designed to prevent the
Company from violating the provisions of Applicable Securities Laws, as required
under Rule 38a-l under the 1940 Act.
(b) BISYS will provide the following services in relation to the Fund
Compliance Program during the term of this Addendum, as part of BISYS' Service
Provider Compliance Program: (i) provide support services to the Chief
Compliance Officer of the Company, including support for conducting an annual
review of the Fund Compliance Program; (ii) assist in developing standards for
reports to the Board by BISYS; and (iii) assist in preparing or providing
documentation for the Board to make findings and conduct reviews pertaining to
the Fund Compliance Program and compliance programs and related policies and
procedures of BISYS.
(c) Notwithstanding anything in this Addendum to the contrary, all
obligations of BISYS in this Addendum shall automatically terminate upon
(i) any termination of the MSA, or (ii) any termination of the administrative
services provided under the MSA.
2. Fees and Expenses
(a) BISYS shall be entitled to receive from the Company the amounts set
forth on Schedule A to this Addendum, in addition to all fees and expenses
charged by BISYS under the MSA.
(b) In addition to paying BISYS the fees set forth in Schedule A, the
Company agrees to reimburse BISYS for all of its actual out-of-pocket expenses
reasonably incurred in providing services under this Addendum, including but not
limited to the costs incurred by BISYS in connection with the Fund Compliance
Program, including those incurred in providing reports to the Chief Compliance
Officer under the Fund Compliance Program and costs in providing reports to, and
attending meetings of, the Board.
3. Information to be Furnished by the Company
(a) The Company has furnished or shall promptly furnish to BISYS copies of
the Fund Compliance Program or the various policies and procedures of the
Company that have been adopted through the date hereof which pertain to
compliance matters that are required to be covered by the Fund Compliance
Program, as amended and current as of the date of this Addendum.
(b) The Company shall furnish BISYS written copies of any amendments to,
or changes in, the items referred to in Section 3(a) hereof, promptly after such
amendments or changes become effective. In addition, the Company agrees that no
amendments will be made to the Fund Compliance Program which might have the
effect of changing the procedures employed by BISYS in providing the services
agreed to hereunder or which amendment might affect the duties of BISYS
hereunder unless the Company first obtains BISYS' written approval of such
amendments or changes, which approval shall not be withheld unreasonably.
(c) BISYS may rely on all documents furnished to it by the Company and its
agents in connection with the services to be provided under this Addendum,
including any amendments to or changes in any of the items to be provided by the
Company pursuant to Section 3(b), and shall be entitled to indemnification in
accordance with Section 8 below with regard to such reliance.
4. Miscellaneous
(a) Except as expressly provided in this Addendum, the provisions ofthe
MSA remain unchanged and in full force and effect.
(b) The provisions set forth in this Addendum supersede all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including any conflicting provisions of the MSA.
(c) No amendment or modification to this Addendum shall be valid unless
made in writing and executed by both parties hereto.
(d) Paragraph headings in this Addendum are included for convenience only
and are not to be used to construe or interpret this Addendum.
(e) This Addendum 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.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to
be duly executed all as of the day and year first above written.
Arrivato/Dow ▇▇▇▇▇ Funds
By:_______________
Name:
Title:
BISYS Fund Services Ohio, Inc.
By:_________________
Name:
Title:
SCHEDULE A TO
COMPLIANCE SERVICES ADDENDUM TO
MASTER SERVICES AGREEMENT
SERVICE PROVIDER COMPLIANCE PROGRAM ANNUAL FEES
First year $65,000
Second year $75,000
Third year $85,000
After third year To be agreed by the parties
The fees set forth above shall be payable in equally monthly installments.