Exhibit (h)(2)
AMENDMENT TO
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TRANSFER AGENCY AGREEMENT
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AMENDMENT made this 25th day of July, 2002, between American
Performance Funds (the "Trust"), a Massachusetts business trust having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and
BISYS FUND SERVICES OHIO, INC. ("BISYS"), a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, to that
certain Transfer Agency Agreement dated January 1, 2002, under which BISYS
performs transfer agency services for the Trust (as amended and in effect on the
date hereof, the "Agreement").
WHEREAS, under the Agreement BISYS is designated as the Trust's
transfer agent and performs the transfer agency services for the Trust that are
enumerated in the Agreement or a Schedule thereto;
WHEREAS, the Agreement provides that BISYS shall perform such
additional services as are mutually agreed upon and provided in an amendment to
the Agreement or its schedules, in consideration of such fees as the parties may
agree upon;
WHEREAS, the Trust desires that BISYS perform certain additional
services for the Trust related to anti-money laundering and fraud prevention;
WHEREAS, BISYS is willing to perform the services enumerated in this
Amendment on the terms and conditions set forth in this Amendment; and
WHEREAS, BISYS and Trust wish to enter into this Amendment to the
Agreement in order to set forth the terms under which BISYS will perform the
services enumerated herein on behalf of the Trust, and to supplement and clarify
certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the
Trust and BISYS hereby agree as follows:
l. Compliance with Laws / Delegation to BISYS.
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The Trust acknowledges that it is a financial institution
subject to the law entitled United and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism ("U.S.A.
Patriot") Act of 2001 and the Bank Secrecy Act (collectively, the "AML Acts")
and shall comply with the AML Acts and applicable regulations adopted thereunder
(collectively, the "Applicable AML Laws") in all relevant respects, subject to
the delegation of certain responsibilities to BISYS; as provided in the next
paragraph below.
The Trust hereby delegates to BISYS the performance, on behalf
of the Trust, of the anti-money laundering services set forth in Schedule B to
this Amendment as concerns the shareholder accounts maintained by BISYS pursuant
to the Agreement. BISYS agrees to the foregoing delegation and agrees to perform
the delegated services in accordance with the antimoney laundering program that
has been adopted by the Trust (the "AML Program"). In connection therewith,
BISYS agrees to maintain policies and procedures, and related internal controls,
that are consistent with the Trust's AML Program and the requirement that the
Trust employ procedures reasonably designed to achieve compliance with the
Applicable AML Laws, including the requirement to have policies and procedures
that can be reasonably expected to detect and cause the reporting of
transactions under Section 5318 of the Bank Secrecy Act. BISYS' obligations
under this delegation shall be subject to Sections 5 and 6 of this Amendment,
which require that the AML Program adopted by the Trust and any material
amendments thereto be submitted to BISYS for its review and consent.
The Trust agrees and acknowledges that, notwithstanding the
delegation provided for in the foregoing paragraph, the Trust maintains full
responsibility for ensuring that its AML Program is, and shall continue to be,
reasonably designed to ensure compliance with the Applicable AML Laws, in light
of the particular business of the Trust, taking into account factors such as its
size, location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Trust also
acknowledges that the performance of the anti-money laundering services
enumerated in Schedule B involves the exercise of discretion, which in certain
circumstances may result in consequences to the Trust and its shareholders (such
as in the case of the reporting of suspicious activities and the freezing of
shareholder accounts). In this regard, (1) 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, and consultation with
the Trust shall not be required in connection therewith unless expressly
required by the AML Program, and (ii) the Trust instructs BISYS that it may
avail the Trust of any safe harbor from civil liability that may be available
under Applicable AML Laws for making a disclosure or filing a report thereunder.
The provisions of the Agreement concerning recordkeeping and
confidentiality are subject to the provisions of this Section.
2. Reimbursement of Expenses and Miscellaneous Service Fees.
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In addition to all fees, expenses and miscellaneous fees or
charges provided for under the Agreement, BISYS shall be entitled to receive
from the Trust the amounts set forth on Exhibit C hereto, reflecting the amounts
charged by BISYS for the performance of delegated services under this Amendment
with respect to the Trust's AML Program.
3. Bank Accounts.
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BISYS is hereby granted such power and authority as may be
necessary to establish one or more bank accounts for the Trust with such bank or
banks as are selected or approved by the Trust, as may be necessary or
appropriate from time to time in connection with the services performed by
BISYS. The Trust shall be deemed to be the customer of such Bank or Banks for
all purposes in connection with 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, the Trust shall provide such bank or banks with all instructions and
authorizations necessary for BISYS to effect such disbursements.
4. Instructions / Procedures.
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The Trust acknowledges and agrees that deviations from BISYS'
written transfer agent compliance procedures may involve a substantial risk of
loss. In the event an authorized representative of the Trust requests that an
exception be made from any written compliance or transfer agency procedures
adopted by BISYS, or adopted by the Trust and approved by BISYS (including any
requirements of the Trust's AML Program), BISYS may in its sole discretion
determine whether to permit such exception. In the event BISYS determines to
permit such exception, the same shall become effective when set forth in a
written instrument executed by an authorized representative of the Trust (other
than an employee of BISYS) and delivered to BISYS (an "Exception"); provided
that an Exception concerning the requirements of the Trust's AML Program shall
be authorized by the Trust's anti-money laundering compliance officer ("AML
Compliance Officer"). An Exception shall be deemed to remain effective until the
relevant instrument expires according to its terms (or if no expiration date is
stated, until BISYS receives written notice from the Trust that such instrument
has been terminated and the Exception is no longer in effect). Notwithstanding
any provision of the Agreement or this Amendment that expressly or by
implication provides to the contrary, as long as BISYS acts in good faith it
shall have no liability whatsoever for any loss, liability, expenses or damages
to the Trust resulting from the Exception, and the Trust shall indemnify BISYS
and hold BISYS harmless from any loss, liability, expenses (including reasonable
attorneys fees) and damages resulting to BISYS therefrom.
The Trust acknowledges receipt of a copy of BISYS' policy
related to the acceptance of trades for prior day processing (the "BISYS As-Of
Trading Policy"). BISYS may amend the BISYS As-Of Trading Policy from time to
time in its sole discretion. A copy of any such amendments shall be delivered to
the Trust upon request. BISYS may apply the BISYS As-Of Trading Policy whenever
applicable, unless BISYS agrees in writing to process trades according to such
other as-of trading policy as may be adopted by the Trust and furnished to BISYS
by the Trust.
The parties may amend any procedures adopted, approved or set
forth under the Agreement by mutual written agreement as may be appropriate or
practical
under the circumstances. BISYS may conclusively assume that any special
procedure which has been approved by an executive officer of the Trust (other
than an officer or employee of BISYS) does not conflict with or violate any
requirements of the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
5. Representations and Warranties of the Trust.
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The Trust represents and warrants that (a) the Trust has
adopted the written AML Program that has been submitted to BISYS pursuant to
Section 6, and has appointed an officer of the Trust as the Trust's AML
Compliance Officer, (b) the AML Program and the designation of the AML Officer
have been approved by the Board of Trustees of the Trust (the "Board"), (c) the
delegation of certain services thereunder to BISYS, as provided in Section 1 of
this Amendment, has been approved by the Board, and (d) the Trust will submit
any material amendments to the AML Program to BISYS for BISYS' review and
consent prior to adoption.
6. Information to be Furnished by the Trust.
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The Trust has furnished to BISYS the following, as amended and
current as of the date of this Amendment:
(a) A list of all officers of the Trust, with the Trust's
AML Compliance Officer included among the officers
therein, and any other persons (who may be associated
with the Trust or its investment advisor), together
with specimen signatures of those officers and other
persons who (except as otherwise provided herein to
the contrary) shall be authorized to instruct BISYS
in all matters.
(b) A copy of the Trust's written AML Program, as defined
in Section I of this Amendment, including related
Policies and Procedures.
7. Information Furnished by BISYS.
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BISYS has furnished to the Trust the following:
(a) The currently effective BISYS "As-of `Trading Policy.
8. Privacy.
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Nonpublic personal financial information relating to consumers
or customers of the Trust provided by, or at the direction of the Trust to
BISYS, or collected or retained by BISYS in the course of performing its
transfer agency duties, shall be considered confidential information. BISYS
shall not give, sell or in any way transfer such confidential information to any
person or entity, other than affiliates of BISYS
except at the direction of the Trust or as required or permitted bylaw
(including Applicable AML Laws). BISYS represents, warrants and agrees that it
has in place and will maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Trust. The Trust represents to BISYS that it
has adopted a Statement of its privacy policies and practices as required by the
Securities and Exchange Commission's Regulation S-P and agrees to provide BISYS
with a copy of that statement annually.
9. Miscellaneous.
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(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 Amendment.
(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 (including, without limitation, the term of
the Agreement). 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 of 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.
AMERICAN PERFORMANCE FUNDS
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxx X. Xxxxx
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SCHEDULE B
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
AMERICAN PERFORMANCE FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
SERVICES
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Anti-Money Laundering Services
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a. Verify shareholder identity upon opening new accounts.
B. Monitor, identify and report shareholder transactions and identify and
report suspicious activities that are required to be so identified and
reported, and provide other required reports to the Securities and
Exchange Commission, the U.S. Treasury Department, the Internal Revenue
Service or each agency's designated agent, in each case consistent with
the Trust's AML Program.
c. Place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as provided in the Trust's AML Program.
d. Create documentation to provide a basis for law enforcement authorities
to trace illicit funds.
e. Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Trust's AML Program, and make the same
available for inspection by (i) the Trust's AML Compliance Officer,
(ii) any auditor of the Trust's AML Program or related procedures,
policies or controls that has been designated by the Trust in writing,
or (iii) regulatory or law enforcement authorities, and otherwise make
said records or other documents available at the direction of the
Trust's AML Compliance Officer.
SCHEDULE C
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
AMERICAN PERFORMANCE FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
CHARGES FOR THE SERVICES SET FORTH
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UNDER SCHEDULE B OF THIS AMENDMENT
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One-time set up program cost $5,000.00
(to be billed in June 2002)
Annual program servicing $4,500.00
(to be billed in equal monthly amounts of $375.00)
Systems costs
Early Warning annual fee $575.00
Early Warning per record cost $0.17
for new account record review - does not apply to Network level 3 accounts
Equifax - per request cost $5.00
