AMENDMENT TO COMPLIANCE SERVICES AGREEMENT
Exhibit (h)(9)
AMENDMENT TO
COMPLIANCE SERVICES AGREEMENT
COMPLIANCE SERVICES 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 Compliance Services Agreement,
dated September 28, 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 Compliance services for the Trust;
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. | Term. |
The original Term of the Agreement ran from September 28, 2004 through September 27,
2005. The Parties now desire to set a new Initial Term for a three (3) year period
beginning July 1, 2009. Section 5 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Term and Termination.
(a) This Agreement shall become effective upon July 1, 2009 (the “Effective Date”)
and shall continue in effect for three (3) years, until June 30, 2012 (the “Initial
Term”), unless earlier terminated pursuant to the terms of this Agreement. During
the Initial Term (i) the Agreement may be terminated upon thirty (30) days notice in
the event there is “cause,” as defined in the Sub-Administration Agreement, and (ii)
the Chief Compliance Officer may be terminated at any time by the Board, in its sole
discretion, without cause and such termination will be effective immediately.
Following the Initial Term, the Agreement may be terminated by either party for
“cause,” as provided above, or by providing the other party with ninety (90) days
written notice of termination.
(b) Notwithstanding anything in this Agreement to the contrary, including but not
limited to the provisions of Section 5(a), all of the obligations of Citi and the
Trust hereunder shall terminate automatically upon any termination of the
Sub-Administration Agreements.
| 2. | Fees and Expenses. |
Schedule A to the Agreement is hereby deleted in its entirety. Section 3(a) of the
Agreement is hereby deleted in its entirety and replaced with the following:
(a) All fees due for the 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.
Section 3(b) is hereby amended by deleting the following portion of the first sentence:
(b) “In addition to paying [Citi] the fees set forth in Schedule A,”
| 3. | Insurance. |
The following provision shall be added to the Agreement:
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.
| 4. | 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.
| 5. | All references to “BISYS” in the Agreement shall mean “Citi”. | ||
| 6. | 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.
(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: Name: |
/s/ Xxx Xxxxxxxxxx
|
|||||
| Title: | President | |||||
| CITI FUND SERVICES OHIO, INC. | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxx
|
|||||
| Title: | President | |||||
