Exhibit (h)(1)(i)
AMENDMENT TO
ADMINISTRATION AGREEMENT
AMENDMENT made as of the 1st day of January, 2003, 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"), an Ohio corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, to that
certain Administration Agreement dated January 1, 2002, under which BISYS
performs certain management and administration services for the Trust (the
"Agreement"). All capitalized terms used but not defined herein shall have the
meaning given to them in the Agreement.
WHEREAS, the Agreement provides that BISYS shall perform such additional
services as are mutually agreed upon in writing by the parties;
WHEREAS, the Trust desires that BISYS perform certain additional services
for the Trust related to anti-money laundering;
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 the 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:
1. Provision of AML Compliance Officer
The Trust 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 ("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 represents and warrants that it will comply with the Applicable
AML Laws, and agrees that, except to the extent provided herein, BISYS shall not
be responsible for ensuring that the Trust complies with its obligations under
the Applicable AML Laws. Without prejudice to the foregoing, BISYS will provide
an appropriate person to serve as the Trust's anti-money laundering compliance
officer ("AML
Compliance Officer"), and, subject to the Trust's compliance with
practices and procedures agreed between the parties from time to time
(collectively, the "Procedures"), BISYS agrees to cooperate with and assist the
Trust in complying with its obligations by causing the AML Compliance Officer to
render the anti-money laundering services described on Schedule A hereto.
The Trust acknowledges that, notwithstanding anything else contained
herein, the Trust maintains full responsibility for ensuring that its anti-money
laundering program (the "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. Neither
BISYS nor the AML Compliance Officer shall be responsible or liable for failure
to undertake any responsibilities or provide any services resulting from an
amendment to the AML Program unless BISYS has consented in writing thereto.
In connection with the appointment of the AML Compliance Officer, the Trust
also acknowledges that the duties of the AML Compliance Officer involves the
exercise of discretion, which in some circumstances may result in consequences
to the Trust and its shareholders (such as in the case of the reporting of
suspicious activities and the freezing of shareholder accounts). In this regard,
(i) under circumstances in which the AML Program authorizes the taking of
certain actions, the AML Compliance Officer is granted the discretion to take
any such action as may be authorized under the AML Program, and consultation
with the Trust shall not be required in connection therewith unless specifically
required under the AML Program, and (ii) the Trust instructs the AML Compliance
Officer 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. To the extent prudent or necessary in order to comply with
the Trust's AML Program or Applicable AML Laws, the AML Compliance Officer and
BISYS shall be entitled, to refuse, in good faith, to process transactions on
behalf of the Trust and Shareholders.
Each party agrees to provide promptly to the other party upon request
copies of the records and other documentation evidencing (i) the identity and
transaction records of an investor, and (ii) the compliance by such party with
the Applicable AML Laws, and, each party also agrees otherwise to assist the
other party in complying with the other party's obligations under the Applicable
AML Laws.
Each party agrees to retain a copy of all materials related to compliance
with the AML Program and Applicable AML Laws (including those used for
identification purposes and, in the case of transactions, the original documents
or copies admissible in legal proceedings) for a period of at least 5 years
after either the relationship with the investor has ended or the execution of
the transaction. Notwithstanding the foregoing, the Trust shall retain records
for any other period specified in the AML Program or under Applicable AML Laws.
2. Fees
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 Schedule B hereto, reflecting the amounts charged
by BISYS for the performance of delegated services under this Amendment with
respect to provision of the Trust's AML Compliance Officer.
3. Representations and Warranties
The Trust represents and warrants that (a) the Trust's Board of Trustees
(the "Board") has approved and adopted the AML Program (a copy of which has been
delivered to BISYS), (b) the individual nominated by BISYS as the Trust's AML
Compliance Officer has been appointed by the President, and approved and
appointed as an officer of the Trust by the Board, and (c) the delegation of
certain services hereunder to BISYS, as provided in Section 1 of this Amendment,
has been approved by the Board.
4. Access to be Provided
The Trust shall provide copies of all books and records of the Trust as the
AML Compliance Officer deems necessary or desirable in order to carry out
his/her duties hereunder on behalf the Trust.
5. Limitation of Liability; Indemnification
Notwithstanding any provision of the Agreement or this Amendment that
expressly or by implication provides to the contrary, BISYS shall not be liable
for any loss, damage, cost, expense or liability incurred or sustained by the
Company or any claim brought against any Company (including as a result of the
Company's failure to comply with its obligations under Applicable AML Laws)
except to the extent such failure is a direct and proximate result of a material
breach of the Agreement as amended by this Amendment by BISYS. (For the
avoidance of doubt, nothing herein is intended to limit any liability BISYS may
have for its duties under any Transfer Agency Agreement between BISYS and the
Trust.) In addition, neither BISYS nor any individual serving from time to time
as the Trust's AML Compliance Officer shall have any liability to the Trust or
any of its trustees, officers, employees, interest holders or service providers
for any actions taken or omissions by such individual in the course of acting a
AML Compliance Officer unless such acts for failure to act constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard of such
individual's duties hereunder as AML Compliance Officer.
The Trust shall indemnify BISYS and any individual serving from time to
time as the Trust's AML Compliance Officer (collectively, the "Indemnified
Parties") to the fullest extent permitted for officers of the Trust by
applicable laws and the Trust's Declaration of Trust and shall keep such
individual covered by appropriate insurance as permitted in Article IV, Section
3(n) of the Declaration of Trust. In the event of any change to the Declaration
of Trust or the Trust's insurance coverage that would affect the indemnification
and coverage of BISYS and the individual serving as the Trust' AML
Compliance Officer, the Trust shall notify BISYS as soon as reasonably
practicable, and if such indemnification or coverage is materially impaired,
BISYS shall have the right to terminate this Amendment by giving written notice
to the Trust within 30 days.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. An Indemnified Party shall promptly advise the Trust of all pertinent
facts concerning any situation with respect to which a claim for indemnification
may be made under this section, but failure to do so in good faith shall not
affect the rights hereunder except to the extent the Trust is materially
prejudiced thereby.
The Trust shall be entitled to participate at its own expense or, if it so
elects, to assume the defense of any suit brought to enforce any claims subject
to this indemnity provision. If the Trust 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 Parties, whose approval shall not be
unreasonably withheld. In the event that the Trust elects to assume the defense
of any suit and retain counsel, an Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it. If the Trust does not elect
to assume the defense of the suit, it will reimburse the Indemnified Parties for
the reasonable fees and expenses of any counsel retained by them.
Notwithstanding the foregoing, the Trust shall not consent to any settlement
that imposes liability or obligations upon any Indemnified Party without such
Indemnified Party's prior written consent. The indemnity and defense provisions
set forth herein shall indefinitely survive the termination of this Agreement.
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 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/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SCHEDULE A
TO THE AMENDMENT TO THE ADMINISTRATION AGREEMENT
BETWEEN AMERICAN PERFORMANCE FUNDS
AND BISYS FUND SERVICES OHIO, INC.
DATED JANUARY 1, 2003
SERVICES
The AML Compliance Officer shall have the following responsibilities:
>> Oversee the Trust's compliance with the AML Program and Applicable AML
Laws, and serve as principal contact person for all communications with
governmental and regulatory authorities regarding issues relating to the
AML Program.
>> Determine whether or not to approve as an investor any customer or entity
from a "non-target market" (as defined in the AML Program).
>> Instruct the Trust's Distributor, in writing, to contact each Covered
Secondary Provider (as defined in the AML Program) informing each of its
anti-money laundering compliance obligations.
>> Instruct the Distributor to include specific contractual provisions
regarding anti-money laundering compliance obligations in all future
agreements entered into on the Trust's behalf with any Covered Secondary
Provider.
>> Maintain a list of Covered Primary Providers (as defined in the AML
Program) and require each of them to provide (i) a description, at least
annually, of its anti-money laundering program, which description shall
include items specified in the AML Program, and (ii) written notice of any
material changes in its program as last provided.
>> Notify each Covered Primary Provider in writing of its obligations as set
forth in the AML Program.
>> Review or arrange for the review of information provided by each Covered
Primary Provider and present the information and results of the review to
the Board of each Portfolio.
>> Arrange periodic testing, in accordance with Applicable AML Laws, of the
Trust's AML Program to assure that it is functioning as written. Such
testing may be accomplished either by independent personnel or by a
qualified outside party. Provide a written report to the Board regarding
such testing.
>> On at least an annual basis and more frequently if necessary or desirable,
provide a report to the Board that assesses the Fund's compliance with
Applicable AML Laws.
>> At the Trust's expense attend, no less frequently than annually, training
or educational sessions designed to address prevention and detection of
money laundering and reporting responsibilities relevant to the Trust. Such
training may be provided by BISYS or an affiliate of BISYS.
SCHEDULE B
TO THE AMENDMENT TO THE
ADMINISTRATION AGREEMENT
BETWEEN AMERICAN PERFORMANCE FUNDS
AND BISYS FUND SERVICES OHIO, INC.
DATED JANUARY 1, 2003
CHARGES
The Trust shall pay BISYS an annual fee of $12,000 billed monthly, plus
associated reasonable out of pocket expenses.
