EXHIBIT (h)(6)
COMPLIANCE SERVICES AGREEMENT
AGREEMENT effective as of the 1st day of October, 2004, between Asset
Management Fund (the "Trust"), a Delaware statutory trust having its principal
place of business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, and BISYS
FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and will become
subject to the requirements of Rule 38a-1 under the 1940 Act, which requires
each registered investment company to adopt policies and procedures that are
reasonably designed to prevent it from violating the federal securities laws;
WHEREAS, BISYS performs certain management and administration services for
the Trust under an administration agreement between BISYS and the Trust dated
August 1, 2004 (the "Administration Agreement");
WHEREAS, BISYS is willing to perform the services enumerated in this
Agreement on the terms and conditions set forth in this Agreement; and
WHEREAS, BISYS and the Trust wish to enter into this 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 Administration Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the
Trust and BISYS hereby agree as follows:
1. Compliance Services.
(a) The Trust has adopted the written compliance polices and procedures
which, in the aggregate, are deemed by the Board of Trustees of the Trust (the
"Board") to be reasonably designed to prevent the Trust from violating the
provisions of the federal securities laws applicable to the Trust (the
"Applicable Securities Laws"), as required under Rule 38a-1 under the 1940 Act
(the "Fund Compliance Program").
(b) The Trust agrees to provide BISYS with copies of its current
compliance policies and procedures and furnish (and using reasonable efforts
request its investment adviser, principal underwriter, administrator, and
transfer agent (collectively, "Service Providers") to furnish) all such
additional information as may reasonably relate to the Fund Compliance Program.
Such information shall include compliance and related information pertaining to
Service Providers.
(c) BISYS will provide the following services in relation to the Fund
Compliance Program during the term of this Agreement: (i) make an individual
acceptable to the Board available to serve as the Trust's Chief Compliance
Officer to administer the Fund
Compliance Program, to the extent provided in Section 2(a) below; (ii) through
the Chief Compliance Officer, assist in maintaining the written policies and
procedures comprising the Fund Compliance Program, as may be amended from time
to time; (iii) through the Chief Compliance Officer, prepare and evaluate the
results of annual reviews of the Fund Compliance Program and the compliance
policies and procedures of Service Providers; (iv) provide support services to
the Chief Compliance Officer of the Trust, including support for conducting an
annual review of the Fund Compliance Program and the compliance policies and
procedures of Service Providers; (v) through the Chief Compliance Officer and
otherwise in support of the Fund Compliance Program, develop standards for
reports to the Board by Service Providers; (vi) through the Chief Compliance
Officer, develop standards for reports to the Board by the Chief Compliance
Officer; and (vii) through the Chief Compliance Officer and otherwise in support
of the Fund Compliance Program, prepare or provide 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 Service
Providers.
2. Provision of Chief Compliance Officer
(a) In connection with the compliance services to be rendered by BISYS
pursuant to Section 1 above, and subject to the provisions of this Section 2(a)
and to Section 2(b) below, BISYS agrees to make available to the Trust a person
to serve as the Trust's chief compliance officer responsible for administering
the Fund Compliance Program as provided in paragraph (a)(4) of Rule 38a-1 (the
"Chief Compliance Officer"). BISYS' obligation in this regard shall be met by
providing an appropriately qualified employee or agent of BISYS (or its
affiliates) who, in the exercise of his or her duties to the Trust, shall act in
good faith and in a manner reasonably believed by him or her to be in the best
interests of the Trust. In the event that the employment relationship or
independent contractor agency relationship between BISYS and any person made
available by BISYS to serve as Chief Compliance Officer terminates for any
reason, BISYS shall have no further responsibility to provide the services of
that particular person, and shall have no responsibility whatsoever for the
services to the Trust or other activities of such person provided or occurring
after such termination regardless of whether or not the Board terminates such
person as Chief Compliance Officer. In such event, upon the request of the
Trust, BISYS will employ reasonable good faith efforts to make another person
available to serve as the Chief Compliance Officer.
In connection with BISYS' commitment to make an appropriately qualified
person available to serve as Chief Compliance Officer, BISYS shall pay a level
of total compensation to such person as is consistent with BISYS' compensation
of employees having similar duties, similar seniority, and working at the same
or similar geographical location. BISYS shall not be obligated to pay any
compensation to a Chief Compliance Officer which exceeds that set forth in the
previous sentence.
The Trust will provide copies of the Fund Compliance Program, related
policies and procedures, and all other books and records of the Trust as the
Chief Compliance Officer deems necessary or desirable in order to carry out his
or her duties hereunder on behalf of the Trust. The Trust shall cooperate with
the Chief Compliance Officer and
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using reasonable efforts request the cooperation of the investment adviser and
any other Service Providers to the Trust, as well as Trust counsel and the
Trust's independent accountants (collectively, the "Other Providers"), and
assist the Chief Compliance Officer in preparing, implementing and carrying out
the duties of the Chief Compliance Officer under the Fund Compliance Program and
Rule 38a-1. In addition, the Trust shall provide the Chief Compliance Officer
with appropriate access to the officers and trustees of the Trust, and to
representatives of and to any records, files and other documentation prepared by
Service Providers and Other Providers, which are or may be related to the Fund
Compliance Program.
Each party agrees to provide promptly to the other party (and to the Chief
Compliance Officer), upon request, copies of other records and documentation
relating to the compliance by such party with Applicable Securities Laws (as
related to the Fund Compliance Program of the Trust), and each party also agrees
otherwise to assist the other party (and the Chief Compliance Officer) in
complying with the requirements of the Fund Compliance Program and Applicable
Securities Laws.
(b) It is mutually agreed and acknowledged by the parties that the Chief
Compliance Officer will be an officer of the Trust. The provisions of Section
2(a) 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 Trust upon request.
The Trust shall provide coverage to the Chief Compliance Officer under its
directors and officers liability policy that is appropriate to the Chief
Compliance Officer's role and title, and consistent with coverage applicable to
the other officers.
In appropriate circumstances, the Chief Compliance 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 material
deviation from the BISYS Policies with respect to the Trust, (b) an ongoing
pattern of conduct involving the continuous or repeated violation of Applicable
Securities Laws by the Trust, or (c) a material deviation by the Trust from the
terms of this Agreement governing the services of such Chief Compliance Officer
that is not caused by such Chief Compliance Officer. In addition, the Chief
Compliance 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 Trust or its Other Providers to make an informed
determination regarding any of the matters listed above.
Each officer may, and the Trust shall, promptly notify BISYS of any issue,
matter or event that would be reasonably likely to result in any claim by the
Trust, one or more Trust shareholder(s) or any third party which involves an
allegation that any officer failed to exercise his or her obligations to the
Trust in a manner consistent with applicable laws.
Notwithstanding any provision of the Administration Agreement or any other
agreement or instrument that expressly or by implication provides to the
contrary, (a) it is expressly agreed and acknowledged that BISYS cannot ensure
that the Trust complies
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with the Applicable Securities Laws, and (b) whenever an employee or agent of
BISYS serves as Chief Compliance Officer of the Trust, as long as such Chief
Compliance Officer acts in good faith and in a manner reasonably believed to be
in the best interests of the Trust (and would not otherwise be liable to the
Trust 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 Trust
shall indemnify the Chief Compliance Officer and BISYS and hold the Chief
Compliance Officer and BISYS harmless from any loss, liability, expenses
(including reasonable attorneys fees) and damages incurred by them arising out
of or related to the service of such employee or agent of BISYS as Chief
Compliance Officer of the Trust to the fullest extent permitted by the Trust's
governing documents (including its Declaration of Trust and By-Laws).
3. Fees and Expenses
(a) BISYS shall be entitled to receive from the Trust the amounts set
forth on Schedule A hereto, reflecting the amounts charged by BISYS for the
performance of services under this Agreement. The fees hereunder shall be in
addition to all fees and expenses charged by BISYS under the Administration
Agreement.
(b) In addition to paying BISYS the fees set forth in Schedule A, the
Trust agrees to reimburse BISYS for all of its actual out-of-pocket expenses
reasonably incurred in providing services under this Agreement, including but
not limited to the following:
(i) All out of pocket costs incurred in connection with BISYS'
provision a Chief Compliance Officer to the Trust in connection with
compliance services, including travel costs for attending Board
meetings and conducting due diligence of Service Providers, pursuant
to a policy approved by the Board; and
(ii) The costs incurred by BISYS in connection with the Fund
Compliance Program, including those costs incurred by or with
respect to Other Providers, in providing reports to the Chief
Compliance Officer under the Fund Compliance Program, pursuant to a
policy approved by the Board.
(c) All rights of compensation under this Agreement for services performed
and for expense reimbursement shall survive the termination of this Agreement.
4. Information to be Furnished by the Trust
(a) The Trust has furnished or shall promptly furnish to BISYS copies of
the following, as amended and current as of the date of this Agreement:
(i) The Fund Compliance Program or the various policies and
procedures of the Trust that have been adopted through the
date hereof which pertain to compliance matters that are
required to be covered by the Fund Compliance Program,
including the compliance programs of Service Providers other
than BISYS, as
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necessary under Rule 38a-1 for inclusion in the Fund
Compliance Program.
(b) The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 4(a) hereof, forthwith upon
such amendments or changes becoming effective. In addition, the Trust 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 Trust first obtains BISYS' 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 Trust and its
agents in connection with the services to be provided under this Agreement,
including any amendments to or changes in any of the items to be provided by the
Trust pursuant to Section 4(a), and shall be entitled to indemnification in
accordance with Section 2(b) with regard to such reliance.
The Trust represents and warrants that (i) the provision of a Chief
Compliance Officer of the Trust by BISYS, as provided in Section 2 of this
Agreement, has been approved by the Board, and (ii) the individual nominated by
BISYS as the Trust's Chief Compliance Officer has been approved and appointed as
an officer of the Trust by the Board.
5. Term and Termination
(a) The compliance services to be rendered by BISYS under this Agreement
(the "Compliance Services") shall commence upon the date of this Agreement and
shall continue in effect for one (1) year, until September 30, 2005, unless
earlier terminated pursuant to the terms of this Agreement. During such one year
term, the Compliance Services may be terminated upon thirty (30) days notice in
the event there is "cause," as defined in the Administration Agreement.
Following the one year anniversary of the date of this Agreement, the Compliance
Services 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
BISYS hereunder shall terminate automatically upon any termination of the
Administration Agreement.
6. Notice
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: if to the Trust, at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; Attn: President; and if to BISYS, at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000; Attn: President, or at such other address as such party
may from time to time specify in writing to the other party pursuant to this
Section.
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7. Governing Law and Matters Relating to the Trust as a Delaware Statutory
Trust
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control. It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the trust property of the
Trust. The execution and delivery of this Agreement have been authorized by the
Board, and this Agreement has been signed and delivered by an authorized officer
of the Trust, acting as such, and neither such authorization by the Trustees nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on them personally, but
shall bind only the trust property of the Trust as provided in the Trust's
Declaration of Trust.
8. Representations and Warranties
Each party represents and warrants to the other that this Agreement has
been duly authorized and, when executed and delivered by it, will constitute a
legal, valid and binding obligation of it, enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties.
9. Miscellaneous
(a) Except as expressly provided in this Agreement, the terms of the
Administration Agreement shall apply to the services rendered under this
Agreement and the general provisions thereof shall be used on a residual basis
to construe any issues arising under this Agreement that are not addressed by
the express terms of this Agreement. Except as provided in this Agreement, the
provisions of the Administration Agreement remain in full force and effect
(including, without limitation, the term of the Agreement).
(b) The provisions set forth in this Agreement supersede all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including any conflicting provisions of the Administration
Agreement.
(c) No amendment or modification to this Agreement shall be valid unless
made in writing and executed by both parties hereto.
(d) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(e) 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.
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* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ASSET MANAGEMENT FUND
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: President
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SCHEDULE A
TO COMPLIANCE SERVICES AGREEMENT
DATED OCTOBER 1, 2004
COMPLIANCE SERVICES FEES
The Trust shall pay BISYS an annual fee of $100,000. The annual fee set forth
above shall be payable in equal monthly installments.
All recurring fees set forth above shall be subject to adjustment annually
commencing on the one-year anniversary of the date of this Agreement by the
percentage increase in consumer prices for services as measured by the United
States Consumer Price Index entitled "All Services Less Rent of Shelter" or a
similar index should such index no longer be published.
OUT OF POCKET EXPENSES
Out of pocket expenses are not included in the above fees and shall also be paid
to BISYS in accordance with the provisions of this Agreement.
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