AMENDMENT TO TRANSFER AGENCY AGREEMENT
Exhibit (h)(3)
AMENDMENT TO
TRANSFER AGENCY AGREEMENT
TRANSFER AGENCY AGREEMENT
AMENDMENT made as of the 22nd day of October, 2009 with an effective date of July
1, 2009 between CAVANAL HILL FUNDS, formerly known as American Performance Funds, a Massachusetts
business trust (the “Trust”) and CITI FUND SERVICES OHIO, INC., formerly known as BISYS Fund
Services Ohio, Inc., an Ohio corporation (“Citi”), to that certain Transfer Agency Agreement, dated
July 1, 2004, between the Trust and Citi (as amended and in effect on the date hereof, the
“Agreement”). All capitalized terms used but not defined herein shall have the meanings given to
them in the Agreement.
WHEREAS, pursuant to the Agreement, Citi performs certain transfer agency services for each
investment portfolio of the Trust (individually a “Fund” and collectively the “Funds”);
WHEREAS, Citi and the Trust wish to enter into this Amendment to the Agreement in order to
extend the Term of the Agreement, revise the fees payable and incorporate the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises
hereinafter contained and for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Trust and Citi hereby agree as follows:
1. Termination of Monthly Rollover Amendment.
The Amendment between the Parties dated February 17, 2009 is of no further force or
effect.
2. Term.
The original “Initial Term” under the Agreement ran from July 1, 2004 through June 30,
2009. The Parties now desire to reset the Initial Term for a three year period beginning
July 1, 2009. The reference to “June 30, 2009” in the fourth paragraph of Section 5 of the
Agreement is hereby deleted and replaced with “June 30, 2012”. In addition, the first
paragraph of Section 5 of the Agreement is hereby deleted in its entirety and shall be
replaced with the following:
Term. This Agreement shall commence on July 1, 2009 (the “Effective Date”)
and continue in effect for three (3) years, until June 30, 2012 (the “Initial
Term”). Thereafter, unless otherwise terminated as provided herein, this Agreement
shall be renewed automatically for successive one year periods (“Rollover Periods”).
This Agreement may be terminated without penalty (i) by provision of a notice of
non-renewal in the manner set forth below, (ii) by mutual agreement of the parties
or (iii) by either party for “cause,” as defined below, upon the provision of sixty
(60) days advance written notice by the party alleging cause. Written notice of
non-renewal must be provided at least sixty (60) days prior to the end of the
Initial Term or any Rollover Period, as the case may be.
3. Funds.
Schedule A of the Agreement is hereby deleted in its entirety and replaced with the
attached Schedule A.
4. Services. The following is added to the end of Schedule B of the Agreement:
7. XXX Account Services. Citi, on behalf of an XXX Custodian, will perform the
additional recordkeeping and administrative functions listed below with respect to any Traditional
XXX, Xxxx XXX, Xxxxxxxxx Education Savings, SIMPLE XXX, and 403(b)(7) accounts offered by the Funds
(collectively, “XXX Accounts”) for which Citi acts as transfer agent (in addition to any applicable
services already set forth in the Agreement).
a. Perform good order review by ERISA guidelines of documents required to open new retirement
accounts for fund shareholders. This includes obtaining an executed retirement application by both
the shareholder and the custodian.
b. Perform good order review by ERISA guidelines and process transfers specific to retirement
accounts. These include transfers from prior custodian or to successor custodians, direct
rollovers from qualified plans, and Xxxx conversions. This includes obtaining acceptance by an
authorized delegate of the successor custodian.
c. Perform annual population extraction, notification, ERISA good order review, and processing
of required mandatory distributions for shareholders aged 701/2 or older.
d. Record the names of beneficiaries identified by the holder of the XXX Account (the “Account
Holder”).
e. Calculate distributions, withdrawals, required withholding and other payments to Account
Holders.
f. Process contributions and distributions for Account Holders.
g. Collect close-out and/or custodial fees when retirement plan assets are fully liquidated
from accounts and disburse revenue in accordance with prospectus, XXX disclosure, and/or XXX
custodial agreement language.
h. Collect custodial fees from Account Holders who elect prepayment and disburse revenue in
accordance with prospectus, XXX disclosure, and/or XXX custodial agreement language.
i. Coordinate and execute the annual XXX custodial fee event to collect fees from active
retirement plan Account Holders via asset liquidation. Disburse revenue in accordance with
prospectus, XXX disclosure, and/or XXX custodial agreement language.
j. Retain all ERISA required Account Holder documents in original form. These documents will
include IRS Form 0000-X, Xxxxx 0000-X, -XX, -XX, -XX, -SEP, and 403(b)(7) plan agreements.
k. Tracking, production, and filing to Account Holders and government entities of federal and
state tax forms specific to retirement plan accounts (i.e. Forms 1099-R and 5498).
l. Complete annual W-4P federal withholding solicitation.
m. Maintain Form W-4P elections for federal and state withholding on retirement plan
distributions for each retirement plan shareholder and perform withholding accordingly.
n. Respond to Account Holder written and verbal operational inquiries related to their
retirement accounts.
5. Fees.
Schedule C to the Agreement is hereby deleted in its entirety. The first sentence of
Section 2 of the Agreement is hereby deleted in its entirety and replaced with the
following:
All fees due for Services provided pursuant to this Agreement are included in the
Asset-Based Annual Fee set forth in Schedule B of the Fund Accounting Agreement
dated July 1, 2004 as amended effective July 1, 2009.
In addition to the Asset-Based Annual Fee, Citi shall be entitled to receive an
annual per account fee from the XXX Custodian for the XXX Account Services described
in Schedule B. The annual per account fee for XXX Account shareholders is $15, with
Citi receiving $13 per account, per year and the XXX Custodian receiving $2 per
account, per year.
In addition to the fees set forth above, Citi shall be entitled to be reimbursed for
all out-of-pocket expenses, including, but not limited to, the expenses set forth in
Section 3 of the Agreement.
6. Limitation of Liability and Service Level Standards.
The following paragraphs shall be added at the end of Section 8 of the Agreement:
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER
PARTY, 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; PROVIDED, HOWEVER, THAT THE INDEMNITIES IN THE THIRD
AND FOURTH PARAGRAPHS OF SECTION 9 AND THE LIQUIDATED DAMAGES PROVISION SET FORTH IN
SECTION 5 SHALL NOT BE SUBJECT TO THE FOREGOING LIMITATION.
Notwithstanding anything contrary contained herein, Citi shall provide the services
described herein in accordance with the Service Level Standards set forth in
Schedule E and shall be liable to the Trust for any failure to achieve such Service
Level Standards as set forth therein.
7. Indemnification.
The following paragraphs shall be added after the second paragraph of Section 9 of the
Agreement:
Each party shall indemnify, defend and hold the other party harmless from and
against any and all claims, demands, actions and suits, judgments, liabilities,
losses, damages, costs, charges, counsel fees and other expenses (including
reasonable investigation expenses) of every nature and character (“Losses”) to the
extent such Losses arise from or relate to third party claims resulting from a
party’s breach of its confidentiality obligations hereunder.
Citi shall indemnify, defend and hold the Trust harmless from and against any and
all Losses to the extent such Losses arise from or relate to infringement,
misappropriation or a violation of the intellectual property rights of a third party
with respect to Services (for the purposes of Section 9, Services shall include
software, hardware, system or other intellectual property relating to the Services)
provided by Citi hereunder; provided that with respect to patent rights,
such indemnity shall be limited to U.S. patent rights of such third parties.
Citi’s infringement indemnification obligations under this Section 9 shall not
extend to: (i) the use of the Services outside the scope of this Agreement; (ii) any
unauthorized modification or use of the Services made by the Trust, (iii) any
customized portions of the Services provided or designed in accordance with written
specifications provided by the Trust, (iv) by the Trust’s unreasonable continuation
of allegedly infringing activities after the Trust having been notified thereof in
writing and Citi having provided or made available modifications to the Services
that would have avoided the further alleged infringement.
In the event the Services are held to infringe, or are believed by Citi to infringe,
an intellectual property right of a third party, Citi shall have the option, at its
expense, to (A) modify the Services to be non-infringing, (B) obtain for the Trust
(at no additional cost to the Trust) the right to continue using the Services, or
(C)
replace the Services with non-infringing Services, provided that such
modification does not degrade the functionality of the Services.
The remedies specified in this Section 9 shall be the Trust’s exclusive remedies
with respect to any third party infringement claims.
8. Insurance.
Section 18 of the Agreement is hereby deleted in its entirety and replaced with the
following:
Citi shall maintain a fidelity bond covering larceny and embezzlement in an amount
that is appropriate in light of its duties and responsibilities hereunder. Citi
shall maintain the following insurance coverage during the entire Term of this
Agreement: (i) Workers’ Compensation Insurance in accordance with applicable laws of
the state where Citi performs services and Employer’s Liability Insurance in an
amount not less than one million dollars ($1,000,000.00) per occurrence, and (ii)
Commercial General Liability Insurance covering bodily injury and property damage
liability in an amount not less than one million dollars ($1,000,000.00) per
occurrence.
Citi shall have the option, either alone or in conjunction with Citigroup, Citi’s
ultimate parent corporation, or any subsidiaries or affiliates of Citigroup, to
maintain self insurance and/or provide or maintain any insurance sufficient to
fulfill its obligations under this Agreement under blanket insurance policies
maintained by Citi or Citigroup, or provide or maintain insurance through such
alternative risk management programs as Citigroup may provide or participate in from
time to time (such types of insurance programs being herein collectively and
severally referred to as “self insurance”), provided the same does not thereby
decrease the insurance coverage or limits set forth in this Section. Any self
insurance shall be deemed to contain all of the terms and conditions applicable to
such insurance as required in this Section. If Citi elects to self-insure, then,
with respect to any claims which may result from incidents occurring during the
terms of this Agreement, such self insurance obligation shall survive the expiration
or earlier termination of this Agreement to the same extent as the insurance
required would survive.
9. Representations and Warranties.
(a) The Trust represents (i) that it has full power and authority to enter into and
perform this Amendment and (ii) that this Amendment will be presented to the Board of
Trustees of the Trust (the “Board”) for the Board’s review and approval.
(b) Citi represents that it has full power and authority to enter into and perform this
Amendment.
10. Miscellaneous.
(a) This Amendment supplements and amends the Agreement. The provisions set forth in
this Amendment supersede all prior negotiations, understandings and agreements bearing upon
the subject matter covered herein, including any conflicting provisions of the Agreement or
any provisions of the Agreement that directly cover or indirectly bear upon matters covered
under this Agreement. Except as set forth herein, the Agreement shall remain in full force
and effect.
(b) Each reference to the Agreement in the Agreement (as it existed prior to this
Amendment) and in every other agreement, contract or instrument to which the parties are
bound, shall hereafter be construed as a reference to the Agreement as amended by this
Amendment. Except as provided in this Amendment, the provisions of the Agreement remain in
full force and effect. No amendment or modification to this Amendment shall be valid unless
made in writing and executed by both parties hereto.
(c) Paragraph headings in this Amendment are included for convenience only and are not
to be used to construe or interpret this Amendment.
(d) This Amendment may be executed in counterparts, each of which shall be an original
but all which, taken together, shall constitute one and the same Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed all as
of the day and year first above written with an Effective Date (as set forth in the new Term
provision) of July 1, 2009.
| CAVANAL HILL FUNDS | ||||||
| By: | /s/ Xxx Xxxxxxxxxx
|
|||||
| Name: Xxx Xxxxxxxxxx | ||||||
| Title: President | ||||||
| CITI FUND SERVICES OHIO, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||||
| Name: Xxxx X. Xxxxxxxxx | ||||||
| Title: Vice President | ||||||
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
CAVANAL HILL FUNDS
AND
CITI FUND SERVICES OHIO, INC.
JULY 1, 2009
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
CAVANAL HILL FUNDS
AND
CITI FUND SERVICES OHIO, INC.
JULY 1, 2009
FUNDS and CLASSES
U.S. Large Cap Equity Fund No-Load Investor Institutional |
Balanced Fund No-Load Investor Institutional |
Short-Term Income Fund No-Load Investor Institutional |
Intermediate Bond Fund No-Load Investor Institutional |
Bond Fund No-Load Investor Institutional |
Intermediate Tax-Free Bond Fund No-Load Investor Institutional |
U.S. Treasury Fund Administrative Service Institutional Select* Premier* |
Cash Management Fund Administrative Service Institutional Select* Premier* |
Tax-Free Money Market Fund Administrative Service Institutional Select* Premier* |
| * | As of July 1, 2009, these Classes have not commenced operations. Until each such Class commences operation, services will not be rendered and expenses will not be incurred under this Agreement. |
SCHEDULE E
SERVICE LEVEL STANDARDS
Each Transfer Agency Standard will be tracked on a monthly basis. In the event Citi fails to meet
a Service Standard in two consecutive months, Citi agrees to take appropriate corrective measures
within the following month to be in compliance with the appropriate standard at the end of such
period. In the event that Citi is not in compliance with the standard in the following month, the
Trust shall be entitled to a fee reduction as listed below. Failure to meet the standard due to a
circumstance outside of Citi’s control shall not be deemed a failure by Citi to meet its standard.
For the purposes of Transfer Agency Service Levels in Schedule F, the Services that Citi provides
to the Trust shall be aggregated with the services Citi provides to its other mutual fund clients
and Citi’s performance shall be determined accordingly.
| Item | Standard | Fee Reduction | ||||||
Financial Transactions |
98 | % | $ | 2,000 | ||||
Maintenance Transactions |
98 | % | $ | 2,000 | ||||
New Accounts |
95 | % | $ | 2,000 | ||||
