EXHIBIT (h)(2)
ADMINISTRATION AGREEMENT
AGREEMENT made this 1st day of August, 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 and BISYS entered into an Administration Agreement
dated August 1, 1999 (the "1999 Agreement"), whereby BISYS agreed to perform
administration services for the Trust, which has continued in effect through the
date hereof;
WHEREAS, the Trust desires that BISYS continue to perform
administration services for the Trust and each investment portfolio of the
Trust, as now in existence and listed on Schedule A, or as hereafter may be
established from time to time (individually referred to herein as the "Fund" and
collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into this Agreement in order to
set forth the terms under which BISYS will perform the administration services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, Trust and BISYS hereby agree as follows:
1. Retention of BISYS
The Trust hereby retains BISYS to act as the administrator of
the Trust and to furnish the Trust and Funds with the management and
administrative services as set forth in Section 2 below. BISYS hereby accepts
such appointment to perform the duties set forth below.
BISYS shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Trust in any way and shall
not be deemed an agent of the Trust other than as descried herein.
2. Administrative Services
BISYS shall perform or supervise the performance by others of
administrative services in connection with the operations of the Trust and
Funds, and, on behalf of the Trust, shall investigate, assist in the selection
of and conduct relations with custodians, depositories, accountants, legal
counsel, underwriters, brokers and dealers, corporate fiduciaries, insurers,
banks and persons in any other capacity deemed to be necessary or desirable for
the Trust's and Funds' operations. BISYS shall provide the Board of Trustees of
the Trust (hereafter referred to as the "Board") with such reports regarding
investment performance as it may reasonably request
but shall have no responsibility for supervising the performance by any
investment adviser or sub-adviser of its responsibilities.
BISYS agrees to perform the services described herein in
accordance with all applicable laws, rules and regulations (including, where
applicable, Generally Accepted Accounting Principles) and in accordance with any
reasonable instructions of the Trust and the Trust's Declaration of Trust,
Bylaws, Prospectus and Statement of Additional Information.
BISYS shall provide the Trust with all necessary office space,
equipment, personnel, compensation and facilities (including facilities for
shareholders' and Board of Trustees meetings) for handling the affairs of the
Trust and Funds and such other services as BISYS shall, from time to time,
determine to be necessary to perform its obligations under this Agreement. In
addition, at the request of the Board, BISYS shall make reports to the Board
concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, BISYS shall:
(a) calculate contractual Trust expenses and control all
disbursements for the Trust, and as appropriate,
compute the Trust's yields, total return, expense
ratios, portfolio turnover rate and, if required,
portfolio average dollar-weighted maturity;
(b) provide information and assistance to counsel to the
Trust in preparing (i) the annual update to the
Trust's registration statement on Form N-1A, (ii)
other amendments to the Trust's registration
statement and supplements to its Prospectus and
Statement of Additional Information, and (iii)
Notices of Annual or Special Meetings of shareholders
of the Trust and proxy materials relating thereto,
and file any of the foregoing with the Securities and
Exchange Commission (the "SEC") upon the request of
the Trust or counsel to the Trust;
(c) prepare such reports, applications and documents
(including reports regarding the sale and redemption
of shares of beneficial interest in the Trust as may
be required in order to comply with Federal and state
securities laws) as may be necessary or desirable to
register the shares of beneficial interest in the
Trust ("Shares") or make notice filings with state
securities authorities, monitor the sale of Shares on
a daily basis upon receipt of sales information for
compliance with state securities laws, and prepare
and file with the appropriate state securities
authorities the registration statements and reports
for the Trust and the Shares and all amendments
thereto, as may be necessary or convenient to
register and keep effective the registration of the
Trust and the Shares with state securities
authorities to enable the Trust to make a continuous
offering of its Shares;
(d) coordinate and prepare, with the assistance of the
Trust's investment adviser and officers, drafts of
communications to shareholders of record of
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the Funds ("Shareholders"), including the annual and
semi-annual report to Shareholders;
(e) prepare and file in a timely manner the certified
final versions of the annual and semi-annual report
on Form N-CSR;
(f) prepare and file the Funds' Form N-SAR and file all
required notices pursuant to Rule 24f-2 under the
Investment Company Act of 1940, as amended (the "1940
Act");
(g) coordinate the solicitation and tabulation of proxies
in connection with the meetings of Shareholders;
(h) administer contracts on behalf of the Trust with,
among others, the Trust's investment adviser,
distributor, custodian, transfer agent and fund
accountant;
(i) supervise the Trust's transfer agent with respect to
the payment of dividends and other distributions to
Shareholders;
(j) calculate performance data of the Funds for
dissemination to up to six (6) information services
covering the investment company industry;
(k) coordinate, provide the necessary financial/tax data
for and supervise the preparation and filing of the
Trust's tax returns;
(l) assist with the layout and printing of prospectuses
and assist with and coordinate layout and printing of
the Funds' semi-annual and annual reports to
Shareholders, prospectuses, prospectus supplements,
and proxy statements;
(m) assist with the design, development, and operation of
the Funds, including new classes, investment
objectives, policies and structure;
(n) make available appropriate individuals to serve as
officers of the Trust, upon designation as such by
the Board, to serve in ministerial capacities related
to services provided by BISYS as determined by the
Board, or to serve in executive capacities subject to
the provisions of Schedule B and the BISYS policies
referred to therein;
(o) advise the Trust and the Board on matters concerning
the Trust, the Funds and their affairs;
(p) obtain, maintain and file fidelity bonds and
directors and officers/errors and omissions insurance
policies for the Trust at the expense of the Trust
and Funds in accordance with the requirements of
Rules 17g-1 and 17d-1(7) under the 1940 Act, to the
extent such bonds and policies are approved by the
Board;
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(q) monitor and advise the Trust and its Funds on their
regulated investment company status under the
Internal Revenue Code of 1986, as amended;
(r) perform necessary administrative services and
functions of the Trust and each Fund to the extent
administrative services and functions are not
provided to the Trust or such Fund pursuant to the
Trust's or such Fund's investment advisory agreement,
distribution agreement, custodian agreement, transfer
agent agreement or fund accounting agreement
(s) maintain corporate records on behalf of the Trust,
including, but not limited to, minute books,
Declaration of Trust and By-Laws;
(t) furnish advice and recommendations with respect to
other aspects of the business and affairs of the
Funds as the Trust and BISYS shall determine
desirable.
(u) assist in developing compliance procedures for each
Fund, and provide compliance monitoring services
incorporating certain of those procedures, which will
include, among other matters, compliance with each
Fund's investment objective, defined investment
policies, restrictions, and tax diversification,
distribution and income requirements, as are
determinable based upon the Fund's accounting
records;
(v) monitor services provide under Shareholder Service
Plans adopted by the Board and financial institutions
that serve, or propose to serve, as shareholder
services agents thereunder ("Shareholder Service
Agents"); coordinate the services to be rendered by
Shareholder Service Agents pursuant to Shareholder
Service Agreements under Shareholder Service Plans,
and review the qualifications of Shareholder Service
Agents to serve as such under the relevant
Shareholder Service Plan; coordinate and assist in
the Trust's execution and delivery of Shareholder
Service Agreements; report to the Board regarding
amounts paid under Shareholder Service Agreements and
the nature of Services provided by the Shareholder
Service Agents thereunder; and maintain appropriate
records in connection with the foregoing;
(w) provide assistance and guidance to the Trust with
respect to matters governed by or related to
regulatory requirements and developments including:
monitoring regulatory and legislative developments
which may affect the Trust, and assisting in
strategic planning in response thereto; assisting the
Trust in responding to and providing documents for
routine regulatory examinations or investigations;
and working closely with counsel to the Trust in
response to such routine or non-routine regulatory
matter; and
(x) assist the Trust in preparing for and administering
Board meetings by (i) coordinating Board book
production and distribution, (ii) subject to review
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and approval by the Trust and its counsel, preparing
Board agendas and minutes, (iii) preparing the
relevant sections of the Board materials pertaining
to the responsibilities of BISYS, (iv) assisting and
coordinating special materials related to annual
contract approvals and approval of rule 12b-1 plans
and related matters, (v) provide appropriate
personnel to attend Board meetings and record the
minutes of such meetings, and produce and distribute
materials for Board meetings, including relevant
sections of the Board materials pertaining to the
responsibilities of BISYS, and (vi) performing such
other Board meeting functions as agreed by the
parties;
(y) assist in maintaining and managing annual regulatory
filing calendar;
(z) assist the Funds in obtaining ratings from nationally
recognized statistical rating organizations;
(aa) notify appropriate Trust officers of xxxx-to-market
issues pursuant to Board-approved procedures;
(bb) consult with and advise, on a proactive basis, Fund
portfolio managers with respect to compliance
matters, including providing on-site
compliance/consulting for portfolio managers focused
on the impact of changes in tax laws and managing a
tax-efficient mutual fund;
(cc) prepare financial materials for Board books;
(dd) prepare/distribute year-end shareholder tax
information letters and Forms 1099-MISC for trustee
fees/vendor payments within 30 days of calendar
year-end; and
(ee) maintain Fund blue sky filing calendars.
Without limiting the foregoing, the services to be provided by
BISYS hereunder shall include the services listed in the detailed service
listing attached hereto as Schedule B. BISYS shall perform such other services
for the Trust that are mutually agreed upon by the parties from time to time.
Such services may include performing internal audit examinations; mailing the
annual and semi-annual reports of the Funds; preparing an annual list of
Shareholders; and mailing notices of Shareholders' meetings, proxies and proxy
statements, for all of which the Trust will pay such fees as may be mutually
agreed upon, including BISYS' out-of-pocket expenses.
BISYS may utilize agents in its performance of its services
and, with the prior written consent of the Trust, appoint in writing other
parties qualified to perform specific administration services reasonably
acceptable to the Trust (individually, a "Sub-Agent") to carry out some or all
of its responsibilities under this Agreement; provided, however, that a
Sub-Agent shall be the agent of BISYS and not the agent of the Trust, and that
BISYS shall be fully responsible for the acts of such Sub-Agent and shall not be
relieved of any of its responsibilities hereunder by the appointment of a
Sub-Agent.
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3. Allocation of Charges and Expenses
(a) The Administrator. BISYS shall furnish at its own expense the
executive, supervisory and clerical personnel necessary to
perform its obligations under this Agreement. BISYS shall also
provide the items which it is obligated to provide under this
Agreement, and shall pay all compensation, if any, of officers
of the Trust and Trustees of the Trust who are affiliated
persons of BISYS or any affiliated corporation of BISYS;
provided, however, that unless otherwise specifically
provided, BISYS shall not be obligated to pay the compensation
of any employee of the Trust retained by the Board to perform
services on behalf of the Trust.
(b) The Trust. The Trust assumes and shall pay or cause to be paid
all other expenses of the Trust not otherwise allocated
herein, including, without limitation, organization costs,
taxes, expenses for legal and auditing services, the expenses
of preparing (including typesetting), printing and mailing
reports, prospectuses, statements of additional information,
proxy solicitation material and notices to existing
Shareholders, all expenses incurred in connection with issuing
and redeeming Shares, the costs of custodial services, the
cost of initial and ongoing registration of the Shares under
Federal and state securities laws, fees and out-of-pocket
expenses of Trustees who are not affiliated persons of BISYS
or any affiliated corporation of BISYS, insurance, interest,
brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment
advisers.
4. Compensation of the Administrator
(a) Administration Fee. For the services to be rendered, the
facilities furnished and the expenses assumed by BISYS
pursuant to this Agreement, the Trust shall pay monthly to
BISYS compensation at an annual rate specified in the Omnibus
Fee Agreement between the Trust and BISYS dated as of August
1, 2004 (the "Fee Agreement"). Such compensation shall be
calculated and accrued daily, and paid to BISYS monthly. In
addition to the foregoing, the Trust shall also reimburse
BISYS for all of its reasonable out-of-pocket expenses,
including, but not limited to, travel and lodging expenses
incurred by officers and employees of BISYS in connection with
attendance at (i) Board meetings and (ii) any other meetings
for which such attendance is requested or agreed upon by the
parties.
If this Agreement becomes effective subsequent to the first day of a
month or terminates in accordance with its terms before the last day of a month,
BISYS' compensation for that part of the month in which this Agreement is in
effect shall be prorated in a manner consistent with the calculation of the fees
as set forth above. Payment of BISYS' compensation for the preceding month shall
be made promptly.
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(b) Survival of Compensation Rights. All rights of compensation
under this Agreement for services performed as of the
termination date shall survive the termination of this
Agreement.
5. Standard of Care; Uncontrollable Events; Limitation of Liability
BISYS shall use reasonable best efforts to ensure the accuracy
of all services performed under this Agreement, but shall not be liable to the
Trust for any action taken or omitted by BISYS in the absence of bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties hereunder. The duties of BISYS shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other
equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon the Trust's reasonable request, BISYS shall provide supplemental
information concerning the aspects of its disaster recovery and business
continuity plan that are relevant to the services provided hereunder.
Notwithstanding the foregoing or any other provision of this Agreement, BISYS
assumes no responsibility hereunder, and shall not be liable for, any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control. Events beyond BISYS' reasonable control include, without
limitation, force majeure events. Force majeure events include natural
disasters, actions or decrees of governmental bodies, and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or other events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN
NO EVENT SHALL BISYS, 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, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. Activities of the Administrator
The services of BISYS rendered to the Trust are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of the Trust are or may be or become interested in
BISYS, as officers, employees or otherwise and that partners, officers and
employees of BISYS and its counsel are or may be or become similarly interested
in the Trust, and that BISYS may be or become interested in the Trust as a
Shareholder or otherwise.
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7. Duration of this Agreement
This Agreement shall continue in effect unless earlier
terminated by either party hereto as provided hereunder until August 1, 2007
(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 only (i) by
mutual agreement of the parties, or (ii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause,
or (iii) on or after February 1, 2006, at the election of either party, by
provision of ninety (90) days advance written notice of termination or (iv)
prior to February 1, 2006, at the election of the Trust, by provision of one
hundred twenty (120) days advance written notice of termination, subject to the
liquidated damages provision set forth below. Written notice of nonrenewal must
be provided at least ninety (90) days prior to the end of the Initial Term or
any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a
material breach of this Agreement that has not been remedied for thirty (30)
days following written notice of such breach from the non-breaching party; (b) a
series of negligent acts or omissions or other breaches of this Agreement which,
in the aggregate, constitutes in the reasonable judgment of the Trust's Board of
Trustees, a serious failure to perform satisfactorily BISYS' obligations
hereunder; (c) a final, unappealable judicial, regulatory or administrative
ruling or order in which the party to be terminated has been found guilty of
criminal or unethical behavior in the conduct of its business; or (d) financial
difficulties on the part of the party to be terminated which are evidenced by
the authorization or commencement of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or involuntary case under Title 11 of
the United States Code, as from time to time is in effect, or any applicable
law, other than said Title 11, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the rights
of creditors. BISYS shall not terminate this Agreement pursuant to clause (a)
above based solely upon the Trust's failure to pay an amount to BISYS which is
the subject of a good faith dispute, if (i) the Trust is attempting in good
faith to resolve such dispute with as much expediency as may be possible under
the circumstances, and (ii) the Trust continues to perform its obligations
hereunder in all other material respects (including paying all fees and expenses
not subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination,
in the event that BISYS in fact continues to perform any one or more of the
services contemplated by this Agreement with the written consent of the Trust,
the provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect. Fees and
out-of-pocket expenses incurred by BISYS but unpaid by the Trust upon such
termination shall be immediately due and payable upon and notwithstanding such
termination. BISYS shall be entitled to collect from the Trust, in addition to
the fees and disbursements provided by Section 4 hereof, the amount of all of
BISYS' cash disbursements in connection with BISYS' activities in effecting such
termination, including without limitation, the delivery to the Trust and/or its
distributor or investment adviser and/or other parties of the Trust's property,
records, instruments and documents upon the presentment by BISYS of invoices for
such cash disbursements.
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If for any reason other than mutual agreement of the parties
or "cause," as defined above, during the first eighteen (18) months of the
Initial Term of this Agreement (i.e., until February 1, 2006), BISYS' services
are terminated hereunder, BISYS is replaced as administrator, or a third party
is added to perform all or a part of the services provided by BISYS under this
Agreement (excluding any Sub-Administrator appointed as provided in Section 8
hereof), then the Trust shall make a one-time cash payment, in consideration of
the fee structure and services to be provided under this Agreement, and not as a
penalty, to BISYS equal to the balance that would be due BISYS for its services
hereunder during the remainder of such eighteen-month period, assuming for
purposes of calculation of the payment that such balance shall be based upon the
average assets of the Trust and fees payable to BISYS monthly during the twelve
(12) months prior to the date that services terminate, BISYS is replaced or a
third party is added.
In the event the Trust or any Fund is merged into another
legal entity in part or in whole pursuant to any form of business reorganization
(including without limitation a purchase of assets) or is liquidated in part or
in whole prior to February 1, 2006, the parties acknowledge and agree that the
liquidated damages provision set forth above shall be applicable only in those
instances in which BISYS is not retained by the other party to such business
reorganization or any successor entity to provide administrative services
consistent with this Agreement, including the compensation provision hereunder.
The one-time cash payment referenced above shall be due and payable on the day
prior to the first day in which services are terminated, BISYS is replaced or a
third party is added.
The parties further acknowledge and agree that, in the event
services are terminated, BISYS is replaced or a third party is added, as set
forth above, (i) a determination of actual damages incurred by BISYS would be
extremely difficult, and (ii) the liquidated damages provision contained herein
is intended to adequately compensate BISYS for damages incurred and is not
intended to constitute any form of penalty.
8. Agents and Assignment
BISYS may, in its discretion and at its own expense (except as
otherwise provided hereunder), utilize agents in its performance of its
services; provided that (i) the Board's approval shall be required to establish
an arrangement in which an agent acts as or is named as a sub-administrator (a
"Sub-Agent"); and (ii) any agent (including any Sub-Agent) retained by BISYS
shall be the agent of BISYS and not the agent of the Trust and BISYS shall be
fully responsible for the acts of such agent (or Sub-Agent) and shall not be
relieved of any of its responsibilities hereunder by the appointment of an agent
(or Sub-Agent). In the event that a Sub-Agent is retained by the Trust (and/or
by BISYS at the request or instruction of the Trust), the foregoing shall not
apply to the extent it is inconsistent with any written agreement(s) approved by
the Trust with respect thereto.
This Agreement shall not be assignable by either party without
the written consent of the other party; provided, however, that BISYS may use
agents and Sub-Agents as provided above.
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9. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, whether groundless or otherwise, and from
and against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character arising
out of or in any way relating to BISYS' actions taken or nonactions with respect
to the performance of services under this Agreement or based, if applicable,
upon reasonable reliance on information, records, instructions or requests given
or made to BISYS by the Trust, the investment adviser and on any records
provided by any fund accountant or custodian thereof; provided, however, that
BISYS shall not be protected in relying on any information, records,
instructions or requests given, made or prepared by BISYS or any affiliate of
BISYS or any officer of the Trust that is an officer or employee of BISYS or any
affiliate of BISYS; and provided, further, that this indemnification shall not
apply to actions or omissions of BISYS in cases of its own bad faith, willful
misfeasance, negligence or from reckless disregard by it of its obligations and
duties; and further provided that prior to confessing any claim against it which
may be the subject of this indemnification, BISYS shall give the Trust written
notice of and reasonable opportunity to defend against said claim in its own
name or in the name of BISYS.
Notwithstanding the foregoing, BISYS agrees to indemnify and
hold harmless the Trust, its employees, agents, trustees, officers and nominees
from and against any and all actions, suits, demands and claims, whether
groundless or otherwise, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character arising out of or in any way relating to
BISYS' bad faith, willful malfeasance or misfeasance, negligence, or reckless
disregard by it of its obligations and duties, with respect to the performance
of services under this Agreement.
The indemnifying party shall be entitled to participate at its
own expense or, if it acknowledges its responsibility to indemnify the other
party, it may elect to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by the indemnifying party and satisfactory to the indemnified party,
whose approval shall not be unreasonably withheld. In the event that the
indemnifying party elects to assume the defense of any suit and retain counsel,
the indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of a suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party.
10. Certain Records
BISYS shall maintain customary records in connection with its
duties as specified in this Agreement. Any records required to be maintained and
preserved pursuant to Rules 31a-1 and 31a-2 under the 1940 Act which are
prepared or maintained by BISYS on behalf of the Trust shall be prepared and
maintained at the expense of BISYS, but shall be the property of the Trust and
will be surrendered promptly to the Trust on request, and made available for
inspection by the Trust or by the Securities and Exchange Commission (the
"Commission") at reasonable times.
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BISYS may at its option at any time, and shall promptly upon
the Trust's demand, turn over to the Trust and cease to retain BISYS' files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the performance of its services or for
its legal protection. If not so turned over to the Trust, such documents and
records shall be retained by BISYS for the time period required by applicable
regulation. At the end of such period, such records and documents shall be
turned over to the Trust unless the Trust authorizes in writing the destruction
of such records and documents.
In case of any request or demand for the inspection of such
records by another party, BISYS shall notify the Trust and follow the Trust's
instructions as to permitting or refusing such inspection; provided that BISYS
may exhibit such records in any case where (i) disclosure is required by law,
(ii) BISYS is advised by counsel that it may incur liability for failure to make
a disclosure unless (in cases involving potential exposure to civil liability)
the Trust has agreed to indemnify BISYS against such liability, (iii) BISYS is
requested to divulge such information by duly-constituted authorities or court
process, or (iv) BISYS is requested to make a disclosure by the Trust. BISYS
shall provide the Trust with reasonable advance notice of disclosure pursuant to
items (i) - (iii) of the previous sentence, to the extent reasonably
practicable.
11. Insurance
BISYS shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to errors and omissions
coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled or reduced. Such notification shall include the
date of cancellation or reduction and the reasons therefor. BISYS shall notify
the Trust of any material claims against it with respect to services performed
under this Agreement, whether or not they may be covered by insurance, and shall
notify the Trust should the total outstanding claims made by BISYS under its
insurance coverage materially impair, or threaten to materially impair, the
adequacy of its coverage.
12. Legal Advice; Reliance on Prospectus and Instructions
BISYS may apply to the Trust at any time for instructions and
may consult with counsel for the Trust and with accountants and other experts
with respect to any matter arising in connection with BISYS' duties, and BISYS
shall not be liable nor accountable for any action taken or omitted by it in
good faith in accordance with such instruction or with the opinion of such
counsel, accountants or other experts. BISYS shall notify the Trust at any time
BISYS believes that it is in need of the advice of counsel (other than counsel
in the regular employ of BISYS or any affiliated companies) with regard to
BISYS' responsibilities and duties pursuant to this Agreement. After so
notifying the Trust, BISYS, at its discretion, shall be entitled to seek,
receive and act upon advice of legal counsel of its choosing, such advice to be
at the expense of the Trust unless relating to a matter involving BISYS' willful
misfeasance, bad faith, negligence or reckless disregard of BISYS'
responsibilities and duties.
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As to the services to be provided hereunder, BISYS will comply
with and may rely conclusively upon the terms of the Prospectuses and Statement
of Additional Information of the Trust relating to the relevant Funds to the
extent that such services are described therein, as well as the minutes of Board
meetings (if applicable) and other records of the Trust unless BISYS receives
written instructions to the contrary in a timely manner from the Trust.
Also, BISYS shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any officers, employees or agents of the
Trust until receipt of written notice thereof from the Trust.
13. 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, to c/o Shay Financial
Services, Inc. Attn: Xxxxxx X. Xxxxxxx, Xx., at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; 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.
14. 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 1940 Act
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 Board 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.
15. Instructions, Approval or Consent by the Trust; Imputation.
Any reference herein to any instructions, approval or consent
of the Trust shall not include any instructions, approval or consent given by
any officer of the Trust that is an officer, employee or agent of BISYS or any
affiliate of BISYS, unless specifically authorized by in an agreement executed
by the Trust, or otherwise by the Board of Trustees of the Trust.
16. Representations and Warranties
The Trust represents and warrants to BISYS that this Agreement
has been duly authorized by the Trust and, when executed and delivered by the
Trust, will constitute a legal, valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its
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terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties.
BISYS represents and warrants that: (a) the various procedures
and systems which BISYS has implemented with regard to safekeeping from loss or
damage attributable to fire, theft or any other cause, records, and other data
of the Trust and BISYS' records, data, equipment, facilities and other property
used in the performance of its obligations hereunder are adequate and that it
will make such changes therein from time to time as are reasonably required for
the secure performance of its obligations hereunder; and (b) this Agreement has
been duly authorized by BISYS and, when executed and delivered by BISYS, will
constitute a legal, valid and binding obligation of BISYS, enforceable against
BISYS in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
right and remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL
REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
REGARDING SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE)
CONCERNING THE SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES
PROVIDED UNDER THIS AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
17. Privacy
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 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 by law. 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 Commission's
Regulation S-P and agrees to provide BISYS with a copy of that statement
annually.
18. Miscellaneous
(a) Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or
interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the
parties hereto as to the subject matter covered by this
Agreement, and supersedes all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the 1999
Agreement.
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(c) 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.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto. The parties
hereto may amend such procedures as may be set forth herein by
written agreement as may be appropriate or practical under the
circumstances, and 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.
(e) The terms "interested person" and "affiliated person," when
used in this Agreement, shall have the respective meanings
specified in the 1940 Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by
the Commission.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement 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
ADMINISTRATION AGREEMENT
BETWEEN
ASSET MANAGEMENT FUND
AND BISYS FUND SERVICES OHIO, INC.
FUNDS
U.S. Government Fund
Intermediate Mortgage Fund
Short U.S. Government Fund
Ultra Short Fund
Adjustable Rate Mortgage (ARM) Fund
Money Market Fund
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SCHEDULE B
ADMINISTRATION AGREEMENT
BETWEEN
ASSET MANAGEMENT FUND
AND BISYS FUND SERVICES OHIO, INC.
SUPPLEMENTAL SERVICES
To assist the Trust in connection with its obligations under Sections
302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and Rule 30a-2 under the 1940 Act
(collectively, with such other related regulatory provisions applicable to the
Trust, "Xxxxxxxx-Xxxxx"), BISYS will internally establish and maintain controls
and procedures ("BISYS internal controls") designed to ensure that information
recorded, processed, summarized, or reported by BISYS and its affiliates on
behalf of the Trust and included in financial information certified by Trust
officers ("Certifying Officers") on Form N-CSR ("Reports") is (a) recorded,
processed, summarized, and reported by BISYS within the time periods specified
in the Commission's rules and forms and the corresponding disclosure controls
and procedures of the Funds ("Fund DCPs"), and (b) accumulated and communicated
to the relevant Certifying Officers consistent with the Fund DCPs.
If requested by Certifying Officers with respect to a fiscal period
during which BISYS serves or served as financial administrator, BISYS will
provide a sub-certification consistent with the requirements of Xxxxxxxx-Xxxxx
pertaining to BISYS' services. In rendering such sub-certifications concerning
Fund Reports, BISYS may (a) limit its representations to information prepared,
processed and reported by BISYS; (b) rely upon and assume the accuracy of the
information provided by officers and other authorized agents of the Funds,
including any other service providers to the Funds (other than BISYS and its
affiliates) and compliance by such officers and agents with the Fund DCPs,
including but not limited to, each Fund's investment adviser(s) and custodian;
and (c) assume that the Trust has selected the appropriate accounting policies
for the Funds.
The Trust shall assist and cooperate with BISYS (and shall cause its
officers, investment advisers and other service providers to assist and
cooperate with BISYS) to facilitate the delivery of information requested by
BISYS in connection with the preparation of the Fund's Form N-CSR, including
Fund financial statements, so that BISYS may submit a draft Report to the Funds'
Disclosure Controls and Procedures Committee ("Fund DCP Committee") at least ten
(10) days prior to the date the relevant Report is to be filed. The relevant
Certifying Officers and the Chief Compliance Officer of the Fund shall be deemed
to constitute the Fund DCP Committee in cases in which no other Fund DCP
Committee has been designated or is operative. In connection with its review and
evaluations, the Fund DCP Committee shall establish a schedule to ensure that
all required disclosures in Form N-CSR and in the financial statements for the
Fund are identified and prepared in a timeframe sufficient to allow review by
the Fund DCP Committee. At the request of the Trust or its Certifying Officers,
BISYS shall provide reasonable administrative assistance to the Trust in
connection with obtaining service provider
17
sub-certifications and SAS-70 reports on internal controls, and in preparing
summaries of issues raised in such documents.
The Trust recognizes its obligation to comply with Xxxxxxxx-Xxxxx.
Without limitation of the foregoing, the Trust shall maintain responsibility
for, and shall support and facilitate the role of each Certifying Officer and
the Fund DCP Committee in, designing and maintaining the Fund DCPs in accordance
with applicable laws, including (a) ensuring that the Fund DCP Committee and/or
Certifying Officers obtain and review sub-certifications and reports on internal
controls from the Fund's investment adviser(s) and other service providers, if
any, sufficiently in advance of the date upon which the relevant financial
statements must be finalized by BISYS (in order to print, distribute and/or file
the same), and (b) evaluating the effectiveness of the design and operation of
the Fund DCP, with (at the Trust's election) the participation of the Certifying
Officers, within the requisite timeframe prior to the filing of each Report.
The Trust agrees and acknowledges that BISYS Policies are applicable to
the service of any BISYS employee as a Certifying Officer of the Trust (an
"Employee/Executive Officer"), and that to the extent this service is rendered
by BISYS it is limited, in each case, to providing an Employee/Executive Officer
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. BISYS shall select, and may replace, the specific employee that it
makes available to serve in the designated capacity as an Employee/Executive
Officer, in BISYS' reasonable discretion, taking into account such person's
responsibilities concerning, and familiarity with, the Trust's operations.
BISYS' provision of each Employee/Executive Officer is also subject to,
and conditioned upon, the following:
(a) The Fund DCPs shall contain (or the Trust and BISYS shall otherwise
establish) mutually agreeable procedures governing the certification
process, and the parties shall comply with such procedures in all
material respects. Among other things, the procedures shall provide as
follows:
(i) The Trust shall establish and maintain a Fund DCP
Committee comprised of persons including (at a
minimum) the Trust's Principal Executive Officer,
Chief Financial Officer and Chief Compliance Officer
and such other individuals as may be reasonably
necessary or appropriate for the Fund DCP Committee
to ensure the cooperation of, and to oversee, each of
the Trust's agents that records, processes,
summarizes, or reports information contained in Fund
Reports (or other information from which such
information is derived), including the investment
adviser and custodian (each, a "Service Provider").
In connection therewith, the Chief Compliance Officer
shall assist the Certifying Officers by requiring
that sub-certifications acceptable to the Certifying
Officers be provided by Service Providers.
(ii) The Fund DCP Committee shall (i) meet within 10 days
before the filing date of each Report to review the
accuracy and completeness of the
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relevant Report and (ii) record its considerations
and conclusions in a written memorandum sufficient to
support conclusions pertaining to Fund DCPs as
required by Item 9 of Form N-CSR. In conducting its
review and evaluations, the Fund DCP Committee shall:
A. establish a schedule to ensure that all
required disclosures in Form N-CSR,
including the financial statements, for the
Fund are identified and prepared in a
timeframe sufficient to allow review;
B. review SAS 70 Reports pertaining to Service
Providers, if applicable, or in the absence
of any such reports, consider the adequacy
of a sub-certification of the Service
Provider. In cases where the SAS 70 report
is dated more than 90 days prior to the
issuance of a Report, the DCP Committee
shall request a written representation from
the Service Provider regarding the continued
application and effectiveness of internal
controls described in the report, or
descriptions of any changes in internal
control structure, as of the date of the
bring-down certification;
C. consider whether there are any significant
deficiencies in the design or operation of
the Fund DCPs that could adversely affect a
Fund's ability to record, process,
summarize, and report financial data, and in
the event that any such deficiencies are
identified, disclose them to the Fund's
Certifying Officers, the Fund's audit
committee and its auditors;
D. consider whether, to the knowledge of each
member of the Fund DCP Committee, there has
been or may have been any fraud, whether or
not material, and in the event that any such
occurrence is identified, ensure that this
has been disclosed to the Certifying
Officers and Chief Compliance Officer
(collectively, the "Executive Officers"), so
that the Executive Officers may inform the
Fund's audit committee and its auditors; and
E. determine whether there were significant
changes in internal controls or in other
factors that could significantly affect
internal controls subsequent to the date of
the most recent evaluation of internal
controls, including any corrective actions
with regard to significant deficiencies and
material weaknesses, and if there were any,
take all steps necessary so that such
changes and corrective actions are reflected
in the Report.
(b) The Trust's governing documents (such as its Agreement and Declaration
of Trust and By-Laws) and/or resolutions of its Board shall contain
mandatory indemnification provisions that are applicable to each
Employee/Executive Officer, and which are intended to have the effect
of fully indemnifying him or her and holding him or her harmless with
respect to any claims, liabilities and costs arising out of or relating
to his or
19
her service as an Employee/Executive Officer in good faith in a manner
reasonably believed to be in the best interests of the Trust, except to
the extent he or she would 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 office, within
the meaning of Section 17(h) of the 1940 Act.
(c) The Trust shall provide coverage to each Employee/Executive Officer
under its directors and officers liability policy that is appropriate
to the Employee/Executive Officer's role and title, and that is
consistent with coverage applicable to other executive management-level
officers;
(d) An Employee/Executive Officer that serves as a Certifying Officer shall
have the full discretion to decline to certify a particular Report that
fails to meet the standards set forth in the Certification, to report
matters involving fraud or other failure to meet the standards of
applicable law to the audit committee of the Board, or in appropriate
circumstances, 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, (b) a violation of
Xxxxxxxx-Xxxxx or other applicable laws, or (c) a material deviation by
the Trust from the terms of this Agreement governing the services of
such Certifying Officer that is not caused by such Certifying Officer
or BISYS.
(e) Each Employee/Executive Officer that serves as a Certifying 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
Fund, the Fund's shareholders or any third party which involves an
allegation that any Report failed to meet the standards of applicable
laws or that any of the Trust's Certifying Officers failed to exercise
their obligations to the Fund in a manner consistent with
Xxxxxxxx-Xxxxx and other applicable laws.
(f) Notwithstanding any provision of this Agreement that expressly or by
implication provides to the contrary, (a) it is expressly agreed and
acknowledged that BISYS cannot ensure that the Trust complies with
Xxxxxxxx-Xxxxx, and (b) if a BISYS employee serves as an Executive
Officer of the Trust, as long as such Executive 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 Executive Officer and BISYS and hold the
Executive Officer and BISYS harmless from any loss, liability, expenses
(including reasonable attorneys fees) and damages incurred by them
arising out of or resulting from the service of such Employee/Executive
Officer as a Certifying Officer or other executive officer of the
Trust.
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